Document No. 235
ILC, 81st Session, 1994, Report III (Part 4B), Freedom of
Association and Collective Bargaining, General Survey by
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 61–78
International Labour Conference
81st Session • 1994
H'V/ï-h
OF ASSOCIATION
AND COLLECTIVE
BARGAINING
International Labour Office Geneva
International Labour Conference
81st Session 1994
Report III (Part 4B)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
General Survey of the Reports
on the Freedom of Association and
and the Right to Organize Convention (No. 87), 1948
and the Right to Organize and Collective
Bargaining Convention (No. 98), 1949
Report of the Committee of Experts on the Application of Conventions
and Recommendations (articles 19, 22 and 35 of the Constitution)
CHAPTER V
The right to strike
Introduction
136. Strike action, which is the most visible form of collective action in
the event of a labour dispute, is often seen as the last resort of workers'
organizations in the pursuit of their demands. It is also the means of action
which gives rise to the most controversy, which is reflected in the discussions
within the supervisory bodies and in particular in the large number of complaints
presented to the Committee on Freedom of Association on this subject. The right
to strike also raises special difficulties in the public and semi-public sectors,
where the concept of employer is not without ambiguities and where the problem
of essential services arises more frequently than in other sectors, since the
exercise of this right inevitably affects third parties who sometimes feel that they
are the victims in disputes in which they have no part. The Committee believes
that it would be useful to explain in some detail its views on this essential feature
of industrial relations, with reference to the existing substantive provisions and
the process which has led it to establish certain principles on this subject.
However, before proceeding, it would like to make some general observations.
137. First, strike action cannot be seen in isolation from industrial relations
as a whole. It is true that it is a basic right, but it is not an end in itself. Strikes
are expensive and disruptive for workers, employers and society and when they
occur they are due to a failure in the process of fixing working conditions
through collective bargaining which should remain the final objective.
138. Furthermore, more than any other aspect of industrial relations, strike
action is often the symptom of broader and more diffuse issues, so that the fact
that a strike is prohibited by a country's legislation or by a judicial order will
not prevent it from occurring if economic and social pressures are sufficiently
strong. In addition, while the judicial authorities generally have to confine
themselves to applying existing legal rules to strikes, it is not unusual for
workers and their unions to launch strikes precisely with the aim of having these
rules changed, which inevitably leads to differences of opinion and even further
disputes.
139. The Committee also emphasizes that the maintaining of the
employment relationship is a normal legal consequence of recognition of the
right to strike. However, in some countries with the common-law system strikes
are regarded as having the effect of terminating the employment contract.
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62 Report of the Committee of Experts
leaving employers free to replace strikers with new recruits. ' In other
countries, when a strike takes place, employers may dismiss strikers or replace
them temporarily, or for an indeterminate period. Furthermore, sanctions or
redress measures are frequently inadequate when strikers are singled out through
some measures taken by the employer (disciplinary action, transfer, demotion,
dismissal); this raises a particularly serious issue in the case of dismissal, if
workers may only obtain damages and not their reinstatement. In the
Committee's view, legislation should provide for genuine protection in this
respect, otherwise the right to strike may be devoid of content.
140. Lastly, one should not overlook the sociological dimension of strike
action, which, like any other social phenomenon, is affected by economic,
social, technological and other changes to which it has to adapt. To name only
a few examples, technological advances, increasing globalization and the
development of multinational enterprises — all factors profoundly affecting the
conditions in which goods and services are produced and their relationship with
work — cannot but influence the issue of strike action. Change can also be seen
in the motives underlying strikes: while most strikes used to support demands
for improved pay or other working conditions, strikes have recently been held
in some countries "for the protection of employment" or "against
delocalization", sometimes with backing from employers.
141. The ILO instruments are the primary source of law in this context,
but the right to strike is also recognized in several other international or regional
instruments, and in national legislation and practice.
ILO instruments
142. Although the right to strike is not explicitly stated in the ILO
Constitution or in the Declaration of Philadelphia, nor specifically recognized
in Conventions Nos. 87 and 98, it seemed to have been taken for granted in the
report prepared for the first discussion of Convention No. 87.2 The right to
strike was mentioned several times in that part of the report describing the
history of the problem of freedom of association and outlining the survey of
legislation and practice.3 In the conclusions and observations of the same
report, it was also mentioned in connection with the special case of public
servants and voluntary conciliation.4 However, during discussions at the
1 Although this is rare in practice, workers are vulnerable to this type of measure. See, for
example, CFA, 277th Report, Case No. 1540 {United Kingdom), paras. 47-98.
2 ILC, 30th Session, 1947, Report VII, Freedom of Association and Industrial Relations.
3 ibid., pp. 30, 31, 34, 46, 52, 73-74.
4 "... the recognition of the right of association of public servants in no way prejudges the
question of the right of such officials to strike, which is something quite apart from the question
under consideration", ibid., p. 109; "... if the parties have recourse by mutual agreement to an
agency for conciliation, they should be obliged to refrain from strikes or lockouts during the
procedure of conciliation." ibid., p. 121.
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The right to strike 63
Conference in 1947 and 1948, no amendment expressly establishing or denying
the right to strike was adopted or even submitted. At present, only Article 1 of
the Abolition of Forced Labour Convention, 1957 (No. 105),5 and Paragraphs
4, 6 and 7 of the Voluntary Conciliation and Arbitration Recommendation, 1951
(No. 92),ù mention strike action, albeit indirectly. However, several resolutions
of the International Labour Conference, regional conferences and industrial
committees7 refer to the right to strike or to measures to guarantee its exercise.
Other international and regional instruments
143. Article 8(l)(d) of the International Covenant on Economic, Social and
Cultural Rights provides that the States parties to the Covenant undertake to
ensure, inter alia, "... the right to strike, provided that it is exercised in
conformity with the laws of the particular country".8 At the regional level,
article 6(4) of the European Social Charter of 1961 expressly recognizes the
right to strike in the event of a conflict of interests, subject to the obligations
resulting from collective agreements in force.9 Article 27 of the Inter-American
Charter of Social Guarantees of 1948 stipulates that: "Workers have the right to
strike. The law shall regulate the conditions and exercise of that right." 10 The
5 Forced or compulsory labour is prohibited ... "(d) as a punishment for having participated
in strikes;".
6 "4. If a dispute has been submitted to conciliation procedure with the consent of all the
parties concerned, the latter should be encouraged to abstain from strikes and lockouts while
conciliation is in progress ...
6. If a dispute has been submitted to arbitration for final settlement with the consent of
all parties concerned, the latter should be encouraged to abstain from strikes and lockouts while
the arbitration is in progress and to accept the arbitration award.
7. No provision of this Recommendation may be interpreted as limiting, in any way
whatsoever, the right to strike."
7 For example: para. 15 of the resolution concerning trade union rights and their relation
to civil liberties, 1970; para. 1(3) of the resolution concerning protection of the right to organize
and to bargain collectively. Third Labour Conference of the American States which are Members
of the International Labour Organization, Mexico, 1946; paras. 13(2) and 17 of the Resolution
concerning industrial relations in inland transport, 1947.
8 Of the 83 member States of the ILO which have ratified both Convention No. 87 and the
Covenant, four {Japan, Netherlands, Norway, Trinidad and Tobago) registered a reservation
specifically concerning Article 8(l)(d). Four others {Algeria, India, Mexico, New Zealand)
accompanied their ratification with a declaration or general reservation concerning Article 8. Japan
made a declaration of interpretation concerning fire-fighting personnel. France stated that it would
apply the provisions of the Covenant concerning the right to strike in accordance with article 6(4)
of the European Social Charter.
9 Concerning the genesis of the European Social Charter and the influence which ILO
standards have had on it, see International Labour Review, Vol. LXXXIV, No. 5, Nov. 1961,
pp. 364-365; No. 6, Dec. 1961, pp. 475-476.
10 Inter-American Charter of Social Guarantees adopted by the Ninth International
Conference of American States, Bogota, 1948. The sixth paragraph of the Preamble — a text
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64 Report of the Committee of Experts
right to strike is also recognized in article 8(1 )(b) of the Additional Protocol to
the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights. "
National legislation and practice
144. An examination of national legislation and practice shows that the
manner and extent to which the right to strike is recognized varies from country
to country. Although it is enshrined in the Constitution of some countries, n it
is most often recognized in general legislation on trade unions or collective
bargaining and accompanied by a number of more or less significant restrictions,
depending on the country, which may sometimes amount in practice to an actual
ban. In other countries the right to strike is not expressly recognized in
legislation, although immunities are provided for as regards civil liability, under
certain conditions.I3
ILO supervisory bodies
145. In the absence of an express provision on the right to strike in the
basic texts, the ILO supervisory bodies have had to determine the exact scope
and meaning of the Conventions on this subject. These bodies are mainly the
Committee on Freedom of Association within the framework of the special
procedure set up to examine complaints of violations of freedom of association
and the present Committee under the terms of articles 19 and 22 of the
Constitution.
Committee on Freedom ofAssociation
146. As early as its second meeting in 1952, the Committee on Freedom
of Association affirmed the principle of the right to strike, stating that it is an
"essential [element] of trade union rights" 14 and stressing shortly afterwards
that "in most countries strikes are recognized as a legitimate weapon of trade
which dates from the same period as the intemational labour Conventions on freedom of
association — states that it is "to the public interest, from the international point of view, to enact
the most comprehensive social legislation possible, to give workers guarantees and rights on a
scale not lower than that fixed in the Conventions and Recommendations of the International
Labour Organization".
" Additional protocol of 1988, known as the "Protocol of San Salvador".
12 For example: Argentina, Burkina Faso, France, Portugal, Romania, Rwanda.
13 For example: Ireland, United Kingdom.
" Second Report, 1952, Case No. 28 (Jamaica), para. 68.
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The right to strike 65
unions in furtherance of their members' interests".15 Although the Committee
subsequently specified the content of this right in a large number of cases, taking
account of the particular circumstances brought to its attention, it has never
departed from this position of principle.16 In dealing with complaints, the
Committee has considered that "... it should be guided in its task, among other
things, by the provisions that have been approved by the Conference and
embodied in the Conventions on freedom of association, which afford a basis for
comparison when particular allegations are examined".17 As regards more
specifically the right to strike, the Committee based itself, inter alia, on the
provisions of the Conventions on freedom of association. '8
Committee of Experts
147. As early as 1959, the Committee expressed in its General Survey the
view that the prohibition of strikes by workers other than public officials acting
in the name of the public powers "... may sometimes constitute a considerable
restriction of the potential activities of trade unions ... There is a possibility that
this prohibition may run counter to Article 8, paragraph 2, of the Freedom of
Association and Protection of the Right to Organize Convention, 1948 (No.
87)".19 This position was subsequently reiterated and reinforced: "a general
prohibition of strikes constitutes a considerable restriction of the opportunities
opened to trade unions for furthering and defending the interests of their
members (Article 10 of Convention No. 87) and of the right of trade unions to
organize their activities";20 "the right to strike is one of the essential means
available to workers and their organizations for the promotion and protection of
their economic and social interests. These interests not only have to do with
better working conditions and pursuing collective demands of an occupational
nature, but also with seeking solutions to economic and social policy questions
and to labour problems of any kind which are of direct concern to the
workers".21 The Committee's reasoning is therefore based on the recognized
right of workers' and employers' organizations to organize their activities and
to formulate their programmes for the purposes of furthering and defending the
interests of their members (Articles 3, 8 and 10 of Convention No. 87).22
Fourth Report, 1953, Case No. 5 {Jndia), para. 27.
Digest, paras. 362-363.
Digest, p. 2.
Digest, paras. 366, 379, 416, 438, 443.
General Survey, 1959, para. 68.
20 General Survey, 1973, para. 107.
21 General Survey, 1983, paras. 200, 205.
22 Article 3(1): "Workers' and employers' organizations shall have the right... to organize
their ... activities and to formulate their programmes";
Article 3(2): "The public authorities shall refrain from any interference which would restrict
this right or impede the lawful exercise thereof;
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66 Report of the Committee of Experts
148. The words "activities and ... programmes" in this context acquire
their full meaning only when read together with Article 10, which states that in
this Convention the term "organization" means any organization "for furthering
and defending the interests of workers or of employers". The promotion and
defence of workers' interests presupposes means of action by which the latter
can bring pressure to bear in order to have their demands met. In a traditional
economic relationship, one of the means of pressure available to workers is to
suspend their services by temporarily withholding their labour, according to
various methods, thus inflicting a cost on the employer in order to gain
concessions. This economic logic cannot be applied as such to the public sector,
although here again the suspension of labour services is the last resort available
to workers. The Committee therefore considers that the ordinary meaning of the
word "programmes" includes strike action, which led it very early on to the
view that the right to strike is one of the essential means available to workers
and their organizations to promote their economic and social interests.
149. Under Article 3(1) of Convention No. 87, the right to organize
activities and to formulate programmes is recognized for workers' and
employers' organizations. In the view of the Committee, strike action is part of
these activities under the provisions of Article 3; it is a collective right
exercised, in the case of workers, by a group of persons who decide not to work
in order to have their demands met. The right to strike is therefore considered
as an activity of workers' organizations within the meaning of Article 3. "
150. As regards the practice followed in the various member States, an
examination of the national legislation currently in force shows that although the
conditions and restrictions of the right to strike vary enormously, iht principle
of the strike as a means of action of organizations is now widely recognized.
The Committee points out in this connection that while 102 countries had ratified
the Convention as of 31 December 1992, in its reports of 1992 and 1993 it made
observations only on about 40 countries, and some of these referred merely to
the conditions in which the right to strike is exercised: this shows that the
legislation of more than 60 per cent of the countries was considered satisfactory
with regard to Convention No. 87.
151. In the light of the above, the Committee confirms its basic position
that the right to strike is an intrinsic corollary of the right to organize protected
by Convention No. 87. That being said, the Committee emphasizes that the right
to strike cannot be considered as an absolute right: not only may it be subject
to a general prohibition in exceptional circumstances, but it may be governed by
Article 8(2): The law of the land, which organizations and their members must respect, must
not "be such as to impair, nor shall it be applied as to impair, the guarantees provided for in this
Convention".
23 It should be noted, however, that the protection provided for in Article 1(d) of the
Abolition of Forced Labour Convention, 1957 (No. 105) extends to individuals, and that the right
to strike recognized by the international instruments referred to in paragraph 143 of this survey
also applies to workers as individuals.
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The right to strike 67
provisions laying down conditions for, or restrictions on, the exercise of this
fundamental right.
General prohibition of strikes
152. A general prohibition of strikes, such as occurs in certain countries,
may arise from specific provisions in the law.24 It may also result from
provisions adopted under emergency or exceptional powers, the government
invoking a crisis situation to justify its intervention. Inasmuch as general
prohibitions of this kind are a major restriction of one of the essential means
available to workers and to their organizations for furthering and defending their
interests, such measures cannot be justified except in a situation of acute national
crisis and then, only for a limited period and to the extent necessary to meet the
requirements of the situation. This means genuine crisis situations, such as those
arising as a result of a serious conflict, insurrection or natural disaster in which
the normal conditions for the functioning of society are absent.
153. A less general but still very serious prohibition may also result in
practice from the cumulative effect of the provisions relating to collective labour
disputes under which, at the request of one of the parties or at the discretion of
the public authorities,25 disputes must be referred to a compulsory arbitration
procedure leading to a final award which is binding on the parties concerned.26
These systems make it possible to prohibit virtually all strikes or to end them
quickly: such a prohibition seriously limits the means available to trade unions
to further and defend the interests of their members, as well as their right to
organize their activities and to formulate their programmes, and is not
compatible with Article 3 of Convention No. 87.
24 For example: The Committee requested the Government of Chad to repeal specifically
Ordinance No. 30 of 26 Nov. 1975, which had "suspended all strike action on the national
territory" (RCE 1993, p. 181).
25 For example: Antigua and Barbuda: ss. 19, 20 and 21 of the Labour Court Act of 1976.
Honduras: s. 555(2) of the Labour Code. Kuwait: s. 88 of the Labour Code. Malta: ss. 27 and
34 of the Industrial Relations Act of 1976. Trinidad and Tobago: s. 65 of the Industrial Relations
Act, as amended in 1978.
26 For example: Bolivia: s. 113(c) of the General Labour Act of 1939. Colombia: ss. 448(3)
and (4) and 450(l)(g) of the Labour Code. Côte d'Ivoire: s. 183 of the Labour Code. Dominica:
s. 59(1) of Industrial Relations Act No. 18 of 1986, as amended. Guyana: s. 3 of the Law on
arbitration in public utilities and the public health services. Nigeria: Industrial Disputes Decree
No. 7 of 1976. Philippines: s. 263(g) and (i) of the Labour Code. Senegal: ss. 238-245 of the
Labour Code. Swaziland: s. 63(1) of the Industrial Relations Act of 1980.
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68 Report of the Committee of Experts
Specific restrictions
154. In some countries legislation, while admitting the principle of the
right to strike, imposes a number of restrictions on the exercise of this right;
such restrictions vary in extent, and most often concern certain categories of
workers because of their status (public service), the functions they perform
(essential services, role in the industrial relations system), their hierarchical rank
(managerial staff) or any combination of these.27 Other restrictions also relate
to strike objectives or methods, or the obligation to give advance notice (clauses
imposing a waiting period).
155. The legislative restrictions imposed on the public service and essential
services are often very similar or even identical, since work in essential services
is often carried out by public officials or employees with a related status. The
Committee considers that the essential criterion is not so much the public or
private nature of the functions concerned as the nature of the tasks carried out.
However, the distinction may be useful here since, while it is easy to imagine
situations in which workers in the private or semi-private sectors perform duties
which undeniably come under the heading of essential services (for security
reasons, for example), there are very broad categories of other workers who,
despite the fact that they belong to the public service, cannot be assimilated to
groups for which the prohibition or restriction of the right to strike would be
justified.
Restrictions relating to the public servicew
156. Convention No. 87 guarantees the right to organize to workers in the
public service. However, their corollary right to strike may be either limited or
prohibited if they are governed by restrictive provisions, such as those referred
to in paragraph 151 above. National legislation varies widely in this respect: at
one end, there are systems which specifically recognize it28 and at the other
end, there are those that specifically prohibit it.29 In some countries there are
no laws or regulations on the subject, which can give rise to radically different
interpretations by the public authorities: tacit prohibition or recognition.
Furthermore, public servants are sometimes governed by entirely separate
legislation which defines, in particular, the conditions for their right to strike, ^
whereas other countries make no distinction between the private and public
27 In its General Survey of 1959, the Committee had already commented on this point, in
particular as regards the restrictions applicable to the public service and essential services (para.
68).
28 For example: Côte d'Ivoire, Fiji, France, Gabon, Poland, Spain.
29 For example: Bolivia, Republic of Korea.
30 For example: Central African Republic, Guatemala, Italy, Lesotho, Luxembourg,
Portugal.
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The right to strike 69
sectors, so that workers in the latter must observe the procedures laid down in
the general legislation in order to strike.31
157. Even when the right to strike is recognized in the public service, this
does not mean that all public servants enjoy unlimited freedom in this respect.
In most countries law and practice establish various restrictions and conditions,
which are generally based on such criteria as the hierarchical rank or level of
responsibility of the employees concerned, the nature of the services they
perform, the conditions to be observed where a strike is called and held, and
even the parties' choice of the machinery for settling disputes.32
158. In the view of the Committee, a too broad definition of the concept
of public servant is likely to result in a very wide restriction or even a
prohibition of the right to strike for these workers. One of the main difficulties
is due to the fact that the concept itself varies considerably from one legal
system to another. For example, the terms "civil servant", "fonctionnaire" and
"funcionario" are far from having the same coverage; furthermore, an identical
term used in the same language does not always mean the same thing in different
countries; lastly, some systems classify public servants in different categories,
with different status, obligations and rights,33 while such distinctions do not
exist in other systems or do not have the same consequences. Although the
Committee cannot overlook the special characteristics and legal and social
traditions of each country, it must, however, endeavour to establish fairly
uniform criteria in order to examine the compatibility of legislation with the
provisions of Convention No. 87. It would be futile to try to draw up an
exhaustive and universally applicable list of categories of public servants who
should enjoy the right to strike or be denied such a right. As it has already
noted,M the Committee considers that the prohibition of the right to strike in
the public service should be limited to public servants exercising authority in the
name of the State. The Committee is aware of the fact that except for the groups
falling clearly into one category or another, the matter will frequently be one of
degree. In borderline cases, one solution might be not to impose a total
prohibition of strikes, but rather to provide for the maintaining by a defined and
limited category of staff of a negotiated minimum service when a total and
prolonged stoppage might result in serious consequences for the public.
Restrictions relating to essential services
159. Numerous countries have provisions prohibiting or limiting strikes in
essential services, a concept which varies from one national legislation to
31 For example: Algeria, Australia, Egypt, Hungary, Iceland, India, Mauritania, Sweden.
32 For example: Canada: Public Service Staff Relations Act: the choice, which can be
reviewed periodically by workers, between two procedures, one of which excludes strike action.
11 For example: Germany: Beamte, Arbeitnehmer (Angestellte, Arbeiter). Turkey: manual
workers, office employees.
34 General Surveys: 1959, para. 68; 1973, para. 109; 1983, para. 214.
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70 Report of the Committee of Experts
another. They may range from merely a relatively short limitative
enumeration35 to a long list which is included in the law itself.36 Sometimes
the law includes definitions, from the most restrictive to the most general kind,
covering all activities which the government may consider appropriate to include
or all strikes which it deems detrimental to public order, the general interest or
economic development.37 In extreme cases, the legislation provides that a mere
statement to this effect by the authorities suffices to justify the essential nature
of the service.38 The principle whereby the right to strike may be limited or
even prohibited in essential services would lose all meaning if national legislation
defined these services in too broad a manner. As an exception to the general
principle of the right to strike, the essential services in which this principle may
be entirely or partly waived should be defined restrictively: the Committee
therefore considers that essential services are only those the interruption of
which would endanger the life, personal safety or health of the whole or part of
the population.39 Furthermore, it is of the opinion that it would not be
desirable — or even possible — to attempt to draw up a complete and fixed list
of services which can be considered as essential.
160. While recalling the paramount importance which it attaches to the
universal nature of standards, the Committee considers that account must be
taken of the special circumstances existing in the various member States, since
the interruption of certain services which in some countries might at worst cause
economic hardship could prove disastrous in other countries and rapidly lead to
conditions which might endanger the life, personal safety or health of the
population. A strike in the port or maritime transport services, for example,
might more rapidly cause serious disruptions for an island which is heavily
dependent on such services to provide basic supplies to its population than it
would for a country on a continent. Furthermore, a non-essential service in the
35 For example: Algeria, Dominican Republic, Haiti, Hungary, Lesotho.
36 For example: Bolivia: Supreme Decree No. 1598 of 1950. Colombia: ss. 430 and
450(l)(a) of the Labour Code and Decrees Nos. 414 and 437 of 1952; 1543 of 1955; 1593 of
1959; 1167 of 1963; 57 and 534 of 1967. Ecuador: s. 503 of Act No. 133 to reform the Labour
Code. Ethiopia: s. 136(2) of Proclamation No. 42/1993 respecting labour. Greece: s. 4 of Act No.
1915 of 1990. Mali: Decree No. 90-562/P-RM of 22 Dec. 1990. Swaziland: s. 65(6) of the
Industrial Relations Act of 1980.
37 For example: Côte d'Ivoire: s. 183 of the Labour Code. Dominica: s. 59(l)(b) of
Industrial Relations Act No. 18 of 1986, as amended. Trinidad and Tobago: s. 65 of the Industrial
Relations Act. Tunisia: s. 384 of the Labour Code.
38 For example: Guatemala: s. 243 of the Labour Code. Pakistan: s. 33(1) of the Industrial
Relations Ordinance of 1969. Philippines: s. 263(g) and (i) of the Labour Code. Romania: ss. 38-
43 of Act No. 15 of 1991 respecting the settlement of industrial disputes.
39 General Survey, 1983, paras. 213-214. See also the observation of the Committee on this
point concerning Ecuador (RCE 1993, p. 193). As regards Lesotho, the Committee has noted with
satisfaction that s. 232(1) of the 1992 Labour Code defines essential services as indicated above
(RCE 1993, p. 206).
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The right to strike 71
strict sense of the term may become essential if the strike affecting it exceeds a
certain duration or extent so that the life, personal safety or health of the
population are endangered (for example, in household refuse collection services).
In order to avoid damages which are irreversible or out of all proportion to the
occupational interests of the parties to the dispute, as well as damages to third
parties, namely the users or consumers who suffer the economic effects of
collective disputes, the authorities could establish a system of minimum service
in other services which are of public utility ("services d'utilité publique") rather
than impose an outright ban on strikes, which should be limited to essential
services in the strict sense of the term.
Negotiated minimum service
161. In the view of the Committee, such a service should meet at least two
requirements. Firstly, and this aspect is paramount, it must genuinely and
exclusively be a minimum service, that is one which is limited to the operations
which are strictly necessary to meet the basic needs of the population or the
minimum requirements of the service, while maintaining the effectiveness of the
pressure brought to bear. Secondly, since this system restricts one of the
essential means of pressure available to workers to defend their economic and
social interests, their organizations should be able, if they so wish, to participate
in defining such a service, along with employers and the public authorities. It
would be highly desirable for negotiations on the definition and organization of
the minimum service not to be held during a labour dispute, so that all parties
can examine the matter with the necessary objectivity and detachment. The
parties might also envisage the establishment of a joint or independent body
responsible for examining rapidly and without formalities the difficulties raised
by the definition and application of such a minimum service and empowered to
issue enforceable decisions.
Essential services and minimum service
162. Because of the diversity of terms used in national legislation and texts
on the subject, some confusion has sometimes arisen between the concepts of
minimum service and essential services: they must therefore be defined very
clearly. When the Committee uses the expression "essential services" in this
survey or in its reports, it refers only to essential services in the strict sense of
the term, i.e. those mentioned above in paragraph 159, in which restrictions or
even a prohibition may be justified, accompanied however by compensatory
guarantees. The minimum service suggested in paragraph 161 above as a
possible alternative to a total prohibition would be appropriate in situations in
which a substantial restriction or total prohibition of strike action would not
appear to be justified and where, without calling into question the right to strike
of the large majority of workers, one might consider ensuring that users' basic
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72 Report of the Committee of Experts
needs are met or that facilities operate safely or without interruption. ** Indeed,
nothing prevents authorities, if they consider that such a solution is more
appropriate to national conditions, from establishing only a minimum service in
sectors considered as "essential" by the supervisory bodies according to the
criteria set forth above, which would justify wider restrictions to, or even a
prohibition of strikes.
Requisitioning
163. Under the legislation of some countries, workers on strike can be
requisitioned. Since the requisitioning of workers could be abused as a means
of settling labour disputes, such action is to be avoided except where, in
particularly serious circumstances, essential services have to be maintained.
Requisitioning may be justified by the need to ensure the operation of essential
services in the strict sense of the term.
Compensatory guarantees
164. If the right to strike is subject to restrictions or a prohibition, workers
who are thus deprived of an essential means of defending their socio-economic
and occupational interests should be afforded compensatory guarantees, for
example conciliation and mediation procedures leading, in the event of deadlock,
to arbitration machinery seen to be reliable by the parties concerned. It is
essential that the latter be able to participate in determining and implementing
the procedure, which should furthermore provide sufficient guarantees of
impartiality and rapidity; arbitration awards should be binding on both parties
and once issued should be implemented rapidly and completely.
Restrictions relating to the objectives of a strike
Political strikes/protest strikes
165. The Committee has always considered that strikes that are purely
political in character do not fall within the scope of freedom of association.4'
However, the difficulty arises from the fact that it is often impossible to
distinguish in practice between the political and occupational aspects of a strike,
since a policy adopted by a government frequently has immediate repercussions
for workers or employers; this is the case, for example, of a general price and
*> For example, in the iron and steel industry, the continuous operation of blast furnaces.
See also CFA, 273rd Report, Case No. 1521, para. 39 {Turkey); 268th Report, Case No. 1486,
para. 187 (Portugal).
" General Surveys, 1959, para. 69; 1973, para. 113; 1983, para. 216.
16-3E.E94
The right to strike 73
wage freeze. In the legislation of many countries political strikes are explicitly
or tacitly deemed unlawful. Elsewhere, restrictions on the right to strike may be
interpreted so widely that any strike might be considered as political. In the view
of the Committee, organizations responsible for defending workers' socioeconomic
and occupational interests should, in principle, be able to use strike
action to support their position in the search for solutions to problems posed by
major social and economic policy trends which have a direct impact on their
members and on workers in general, in particular as regards employment, social
protection and the standard of living.42
Strikes, collective bargaining and "social peace"
166. The legislation in many countries does not establish any restrictions
on the time when a strike may be initiated, stipulating only that the advance
notice established by the law must be observed. Other industrial relations
systems are based on a radically different philosophy in which collective
agreements are seen as a social peace treaty of fixed duration during which
strikes and lockouts are prohibited under the law itself, with workers and
employers being afforded arbitration machinery in exchange. Recourse to strike
action is generally possible under these systems only as a means of pressure for
the adoption of an initial agreement or its renewal. The Committee considers that
both these options are compatible with the Convention and that the choice should
be left to the law and practice of each State. In both types of systems, however,
workers' organizations should not be prevented from striking against the social
and economic policy of the Government, in particular where the protest is not
only against that policy but also against its effects on some provisions of
collective agreements (for instance the impact of a wage control policy imposed
by the Government on monetary clauses in the agreement).
167. If legislation prohibits strikes during the term of collective
agreements, this major restriction on a basic right of workers' organizations
must be compensated by the right to have recourse to impartial and rapid
arbitration machinery for individual or collective grievances concerning the
interpretation or application of collective agreements. Such a procedure not only
allows the inevitable difficulties of application and interpretation to be settled
during the term of an agreement, but has the advantage of clearing the ground
for subsequent bargaining rounds by identifying the problems which have arisen
during the term of the agreement.
See also Ch. IV, paras. 130-133.
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74 Report of the Committee of Experts
Sympathy strikes
168. Sympathy strikes, which are recognized as lawful in some countries,
are becoming increasingly frequent because of the move towards the
concentration of enterprises, the globalization of the economy and the
delocalization of work centres. While pointing out that a number of distinctions
need to be drawn here (such as an exact definition of the concept of a sympathy
strike; a relationship justifying recourse to this type of strike, etc.), the
Committee considers that a general prohibition on sympathy strikes could lead
to abuse and that workers should be able to take such action, provided the initial
strike they are supporting is itself lawful.
Export processing zones
169. In an increasing number of countries, legislation establishes a special
system of industrial relations in free zones, which are sometimes called export
processing zones or industrial zones.43 In its General Report of 1993^ the
Committee referred to this problem, which is not unrelated to the growing
phenomenon of the delocalization of enterprises. Amongst other provisions
establishing exceptions from the general system of industrial relations, some of
this legislation specifically or indirectly prohibits strikes: such a prohibition is
incompatible with the provisions of the Convention, which provide that all
workers, without distinction whatsoever, shall have the right to establish
organizations of their own choosing and that such organizations shall have the
right to organize their activities and to formulate their programmes.45
Other prerequisites
Requirement of a strike ballot
170. In many countries legislation subordinates the exercise of the right to
strike to prior approval by a certain percentage of workers. Although this
requirement does not, in principle, raise problems of compatibility with the
Convention, the ballot method, the quorum and the majority required should not
be such that the exercise of the right to strike becomes very difficult, or even
impossible in practice. The conditions established in the legislation of different
43 For example: Bangladesh, Export Processing Zones Authority Act of 1980. Pakistan:
Export Processing Zone Authority Ordinance of 1980 and Export Processing Zone (Control of
Employment) Rules of 1982. Togo: no provisions regulating industrial relations in export
processing zones.
44 RCE 1993, paras. 58-61. See also Ch. Ill, para. 60.
45 See also CFA, 241st Report, Case No. 1323 (Philippines), para. 371 ; 253rd Report, Case
No. 1383 (Pakistan), para. 98.
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ne right to strike 75
countries vary considerably and their compatibility with the Convention may also
depend on factual elements such as the scattering or geographical isolation of
work centres or the structure of collective bargaining (by enterprise or industry),
all of which require an examination on a case by case basis. If a member State
deems it appropriate to establish in its legislation provisions which require a vote
by workers before a strike can be held, it should ensure that account is taken
only of the votes cast, and that the required quorum and majority are fixed at a
reasonable level.
Exhaustion of conciliation/mediation procedures
111. In a large number of countries legislation stipulates that the
conciliation and mediation procedures must be exhausted before a strike may be
called. ^ The spirit of these provisions is compatible with Article 4 of
Convention No. 98, which encourages the full development and utilization of
machinery for the voluntary negotiation of collective agreements.47 Such
machinery must, however, have the sole purpose of facilitating bargaining: it
should not be so complex or slow that a lawful strike becomes impossible in
practice or loses its effectiveness. ^
Waiting period, advance notice
172. In a large number of countries the law requires workers and their
organizations to give notice of their intention to strike49 or gives the authorities
the power to impose an additional cooling-off period.50 In so far as they are
conceived as an additional stage in the bargaining process and designed to
encourage the parties to engage in final negotiations before resorting to strike
action — preferably with the assistance of a conciliator or a special mediator —
such provisions may be seen as measures taken to encourage and promote the
development of voluntary collective bargaining as provided for in Article 4 of
Convention No. 98. Again, however, the period of advance notice should not
be an additional obstacle to bargaining, with workers in practice simply waiting
for its expiry in order to be able to exercise their right to strike. The period of
advance notice should be shorter if the mediation or conciliation procedure itself
46 For example: Bahamas, Bulgaria, Cameroon, Madagascar, Morocco, Poland, Thailand,
Venezuela, Zambia.
47 When conciliation and arbitration are voluntary, account should be taken of Para. 7 of
the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92): "No provision of this
Recommendation may be interpreted as limiting, in any way whatsoever, the right to strike."
48 See, for example, as regards administrative obstacles and practical difficulties for the
lawful initiation of a strike, CFA, 279th Report, Case No. 1566 {Peru), para. 89.
*' For example: Algeria, Central African Republic, Djibouti, Guinea, Poland. In some
countries, for example France, legislation makes advance notice obligatory only in the public
sector, while parties in the private sector are allowed to negotiate this point.
50 An identical period of advance notice is generally required for lockouts.
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76 Report of the Committee of Experts
is already lengthy and has enabled the remaining matters in dispute to be clearly
identified.
Forms of strike action
173. When the right to strike is guaranteed by national legislation, a
question that frequently arises is whether the action undertaken by workers
constitutes a strike under the law. Any work stoppage, however brief and
limited, may generally be considered as a strike. This is more difficult to
determine when there is no work stoppage as such but a slowdown in work (goslow
strike) or when work rules are applied to the letter (work-to-rule); these
forms of strike action are often just as paralyzing as a total stoppage. Noting that
national law and practice vary widely in this respect, the Committee is of the
opinion that restrictions as to the forms of strike action can only be justified if
the action ceases to be peaceful.
The course of the strike
Picketing/occupation of the workplace
174. Strike picketing aims at ensuring the success of the strike by
persuading as many persons as possible to stay away from work. The ordinary
or specialized courts are generally responsible for resolving problems which may
arise in this respect. National practice is perhaps more important here than on
any other subject: while in some countries strike pickets are merely a means of
information, ruling out any possibility of preventing non-strikers from entering
the workplace, in other countries they may be regarded as a form of the right
to strike, and the occupation of the workplace as its natural extension, aspects
which are rarely questioned in practice, except in extreme cases of violence
against persons or damage to property. The Committee considers in this respect
that restrictions on strike pickets and workplace occupations should be limited
to cases where the action ceases to be peaceful.
Replacement of strikers
175. A special problem arises when legislation or practice allows
enterprises to recruit workers to replace their own employees on legal strike.
The difficulty is even more serious if, under legislative provisions or case-law,
strikers do not, as of right, find their job waiting for them at the end of the
dispute.51 The Committee considers that this type of provision or practice
Si CFA, 278th Report, Case No. 1543 {United States), para. 93; the case-law makes a
distinction between "unfair labour practice" strikes and "economic" strikes. See also para. 139
as regards the maintaining of the employment relationship.
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The right to strike 11
seriously impairs the right to strike and affects the free exercise of trade union
rights. "
Sanctions against strikes
176. Most legislation restricting or prohibiting the right to strike also
contains clauses providing for sanctions against workers and trade unions that
infringe these provisions. In some countries, striking illegally is a penal offence
punishable by a fine or term of imprisonment.33 Elsewhere, engaging in an
unlawful strike may be considered as an unfair labour practice and entail civil
liability and disciplinary sanctions.
177. The Committee considers that sanctions for strike action should be
possible only where the prohibitions in question are in conformity with the
principles of freedom of association. Even in such cases, both excessive recourse
to the courts in labour relations and the existence of heavy sanctions for strike
action may well create more problems than they resolve. Since the application
of disproportionate penal sanctions does not favour the development of
harmonious and stable industrial relations, if measures of imprisonment are to
be imposed at all they should be justified by the seriousness of the offences
committed. In any case, a right of appeal should exist in this respect.
178. In addition, certain prohibitions of, or restrictions to, the right to
strike which are in conformity with the principles of freedom of association
sometimes provide for civil or penal sanctions against strikers and trade unions
which violate these provisions. In the view of the Committee, such sanctions
should not be disproportionate to the seriousness of the violations.
179. In the view of the Committee, the right to strike is an intrinsic
corollary of the right of association protected by Convention No. 87. This right
is not, however, absolute and may be restricted in exceptional circumstances or
even prohibited for certain categories of workers, in particular certain public
servants orfor essential services in the strict sense of the term, on condition that
compensatory guarantees are providedfor. A negotiated minimum service might
be established in other services which are of public utility ("services d'utilité
publique") where a total prohibition of strike action cannot be justified.
Provisions which, for instance, require the parties to exhaust mediation or
51 Some countries have adopted legislation which prohibits employers from hiring outside
workers to ensure continuation ofproduction or services, for example: Bulgaria; Canada (Quebec,
Ontario, British Columbia) with some exceptions made for managerial staff; Greece; Turkey.
53 For example: Ecuador (RCE 1992, p. 330); Philippines (RCE 1993, p. 302); Sudan (RCE
1993, p. 304); Syrian Arab Republic (RCE 1993, p. 305); Thailand (RCE 1992, p. 356). By
contrast, the Committee recently noted with satisfaction the repeal of such provisions in Costa
Rica (RCE, 1994 observation on C.87).
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78 Report of the Committee of Experts
conciliation procedures or workers' organizations to observe certain procedural
rules before launching a strike are admissible, provided that they do not make
the exercise of the right to strike impossible or very difficult in practice, which
would result in a very wide restriction of this right in fact. Since the maintaining
of the employment relationship is a normal consequence of recognition of the
right to strike, its exercise should not result in workers being dismissed or
discriminated against.
16-3E.E94
Document No. 236
ILC, 101st Session, 2012, Report III (Part 1B), Giving
globalization a human face, General Survey on the
fundamental Conventions concerning rights at work in
light of the ILO Declaration on Social Justice for a Fair
Globalization, 2008, pp. 46–65
Giving globalization
a human face
INTERNATIONAL LABOUR CONFERENCE
101st SESSION, 2012
ILC.101/III/1B
International Labour Conference, 101st Session, 2012
General Survey on the fundamental Conventions
concerning rights at work in light of the ILO
Declaration on Social Justice for a Fair Globalization, 2008
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application of Conventions and Recommendations
(articles 19, 22 and 35 of the Constitution)
Report III (Part 1B)
International Labour Office Geneva
Giving globalization a human face
46 ILC.101/III/1B.docx
establishing the possibility for the governor to appoint an observer to the general
congress of a trade union.
116. With regard to the political activities of organizations, the Committee is of the view
that both legislative provisions which establish a close relationship between trade
union organizations and political parties, and those which prohibit all political
activities by trade unions, give rise to difficulties with regard to the principles of the
Convention. Noting that the existence of a stable, free and independent trade union
movement is an essential condition for good industrial relations and should contribute to
the improvement of social conditions generally in each country, 258 the Committee
considers that some degree of flexibility in legislation is therefore desirable, so that a
reasonable balance can be achieved between the legitimate interests of organizations in
expressing their point of view on matters of economic or social policy affecting their
members or workers in general, on the one hand, and the separation of political activities
in the strict sense of the term and trade union activities, on the other. 259
The right to strike
Introduction
117. Strikes are essential means available to workers and their organizations to
protect their interests, but there is a variety of opinions in relation to the right to strike.
While it is true that strike action is a basic right, it is not an end in itself, but the last
resort for workers’ organizations, as its consequences are serious, not only for employers,
but also for workers, their families and organizations and in some circumstances for third
parties. In the absence of an express provision in Convention No. 87, it was mainly on
the basis of Article 3 of the Convention, which sets out the right of workers’
organizations to organize their activities and to formulate their programmes, and
Article 10, under which the objective of these organizations is to further and defend the
interests of workers, that a number of principles relating to the right to strike were
progressively developed (as was the case for other provisions of the Convention) by the
Committee on Freedom of Association as a specialized tripartite body (as of 1952), and
by the Committee of Experts (as of 1959, and essentially taking into consideration the
principles established by the Committee on Freedom of Association). This position of
the supervisory bodies in favour of the recognition and protection of the right to strike
has, however, been subject to a number of criticisms from the Employers’ group in the
Committee on the Application of Standards of the International Labour Conference.
258 Resolution concerning the independence of the trade union movement, 1952 (Preamble).
259 General survey, 1994, paras 130–133.
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
ILC.101/III/1B.docx 47
Employers’ group
The Employers’ group in the Conference Committee considers that neither the
preparatory work for Convention No. 87, nor an interpretation based on the Vienna
Convention on the Law of Treaties, offers a basis for developing, starting from the
Convention, principles regulating in detail the right to strike. 1
According to the Employer members, the right to strike has no legal basis in the
freedom of association Conventions. In their view, Convention No. 87 at most contains a
general right to strike, which nonetheless cannot be regulated in detail under the
Convention. They consider that when the Committee of Experts expresses its views in
detail on strike policies, especially on essential services, it applies a “one-size-fits-all”
approach that fails to recognize differences in economic or industrial development and
current economic circumstances. They add that the approach of the Committee of
Experts undermines tripartism and ask it to reconsider its interpretation of the matter. 2 In
2011, the Employer members reiterated their position, considering that the observations
of the Committee of Experts on the right to strike and essential services are not in
conformity with the text, the preparatory work and the history of the negotiation of
Convention No. 87. 3
In its communication dated 7 July 2011, the International Organisation of Employers
(IOE) recalls and develops in detail the long-held views of the Employers’ group in
relation to the right to strike as set out in the Conference Committee Record of
Proceedings, particularly those related to the 81st Session of the International Labour
Conference (1994) when the last General Survey on freedom of association and
collective bargaining was discussed.
1Committee on the Application of Standards: Extracts from the Record of Proceedings, ILC, 99th Session,
Geneva, June 2010, Part I, General Report, para. 57.2ibid.3Committee on the Application of Standards:
Extracts from the Record of Proceedings, General Report, 100th Session, Geneva, June 2011, Part I, General
Report, para. 55. Moreover, during the discussion of the 1994 General Survey, the Employer members
indicated that “strike was not mentioned either in Convention No. 87 or in Convention No. 98. Furthermore, the
Survey placed a great deal of emphasis […] on the historical aspects of these instruments; this historical
method of interpretation however was only of secondary importance since, in the first place, must come the
text, the purpose and the meaning of the provisions themselves. There were no concrete provisions and it was
not helpful to quote the standards contained in the instruments of other organizations where strikes and
collective action were sometimes mentioned in another context and in a very general or only indirect manner.
[…] The beginning of the chapter rightly indicated that the right to strike was mentioned during the preparatory
work, but adds in paragraph 142 that “[…] during discussions at the Conference in 1947 and 1948, no
amendment expressly establishing or denying the right to strike was adopted or even submitted”. The
Employer members however quoted the following passage: “Several Governments, while giving their approval
to the formula, have nevertheless emphasized, justifiably it would appear, that the proposed Convention relates
only to the freedom of association and not to the right to strike, a question which will be considered in
connection with Item VIII (conciliation and arbitration) on the agenda of the Conference. In these
circumstances, it has appeared to the Office to be preferable not to include a provision on this point in the
proposed Convention concerning freedom of association”. (31st Conference, 1948, Report VII, p. 87.) A similar
conclusion was made in the plenary sitting: “The Chairman stated that the Convention was not intended to be a
‘code of regulations’ for the right to organize, but rather a concise statement of certain fundamental principles”.
(31st Conference, 1948, Record of Proceedings, Appendix X, p. 477). Later, Recommendation No. 92 on
voluntary conciliation and arbitration dealt with this issue in a neutral manner without regulating the contents.
During the plenary sitting, the famous Worker spokesperson, Léon Jouhaux, bitterly complained of the
unsatisfactory result of the discussion: he did not explicitly mention the absence of the right to strike, but other
delegates did. Moreover, during the adoption of Convention No. 98, two requests presented by Workers’
delegates with the aim of including a guarantee of the right to strike were rejected on the basis that it was not
covered by the proposed text and that this question should be dealt with at a later stage. (32nd Conference,
1949, Record of Proceedings, Appendix VII, pp. 468 and 470; see also ILO: Industry and Labour, Vol. II,
July–December 1949, pp. 147, and following.) Shortly afterwards, a Government delegate made the same
request which the chairman declared unreceivable for the same reasons. […] Under these circumstances, it
was incomprehensible to the Employers that the supervisory bodies could take a stand on the exact scope and
content of the right to strike in the absence of explicit and concrete provisions on the subject, and that this
absence seemed precisely to be the justification for their position, as is suggested in paragraph 145. The
Committee of Experts had put into practice here what was called in mathematics an axiom and in Catholic
theology a dogma: that is complete, unconditional acceptance of a certain and exact truth from which
everything else was derived” (Record of Proceedings, ILC, 81st Session, Geneva, 1994, paras 117–119,
pp. 25/32 and 33).
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Workers’ group
The Worker members of the Conference Committee contest the position of the
Employer members and consider that, although the right to strike is not explicitly
mentioned in the Convention, that does not prevent its existence being recognized,
particularly on the basis of several international instruments. 1
In the discussion of the 1994 General Survey, they stated that the right to strike is
an indispensable corollary of the right to organize protected by Convention No. 87 and
by the principles enunciated in the ILO Constitution. In their view, without the right to
strike, freedom of association would be deprived of its substance. They added that
strike objectives could not be limited only to the conflicts linked to the workplace or the
enterprise, particularly given the phenomena of enterprise fragmentation and
internationalization. This was the logical consequence of the fact that trade union
activities should not be limited to strictly occupational questions. This was the reason
why sympathy strikes should be possible, as well as strikes at the sectoral level, the
national and the international level. Finally, they considered that by considerably
limiting the scope of action of trade unions, by legal or administrative restrictions,
governments and employers might find themselves increasingly faced with
spontaneous actions. 2
According to the Worker members, possible restrictions on the right to strike in
essential services and for certain categories of public servants should be restrictively
defined given that they are exceptions to a general rule concerning a fundamental
right. They added that the Committee of Experts unanimously, all the Worker members
and a large majority of the Government members are of the opinion that effective
protection of freedom of association necessarily implies operational rules and
principles concerning the modalities of strike action. Finally, they indicated that the
Committee of Experts had developed its views on this question in a very cautious,
gradual and balanced manner, and that it would be preferable that the general
consensus established in this regard was not shaken up. 3
1 Committee on the Application of Standards: Extracts from the Record of Proceedings, ILC, 99th Session,
Geneva, June 2010, Part I, General Report, para. 74. 2 Record of Proceedings, ILC, 81st Session, Geneva,
1994, 25, General Report, paras 136–143, pp. 25/38–40. 3 ibid.
118. With regard to the views put forward that the preparatory work would not support
the inclusion of the right to strike, the Committee would first observe that the absence of
a concrete provision is not dispositive, as the terms of the Convention must be
interpreted in the light of its object and purpose. While the Committee considers that the
preparatory work is an important supplementary interpretative source when reviewing
the application of a particular Convention in a given country, it may yield to the other
interpretative factors, in particular, in this specific case, to the subsequent practice over a
period of 52 years (see Articles 31 and 32 of the Vienna Convention on the Law of
Treaties). In addition, and as seen below in response to comments made by both workers’
and employers’ organizations, the process of determining whether there is compliance
with a general right to strike invariably involves consideration of the specific
circumstances in which the Committee is called upon to determine the ambit and
modalities of the right. The Committee has further borne in mind over the years the
considerations set forth by the tripartite constituency and would recall in this respect that
the right to strike was indeed first asserted as a basic principle of freedom of association
by the tripartite Committee on Freedom of Association in 1952 and has been recognized
and developed in scores of its decisions over more than a half century. Moreover, the
1959 General Survey, in which the Committee first raised its consideration in respect of
the right to strike in relation to the Convention, was fully discussed by the Conference
Committee on the Application of Standards without objection from any of the
constituents.
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
ILC.101/III/1B.docx 49
119. The Committee reaffirms that the right to strike derives from the Convention. The
Committee highlights that the right to strike is broadly referred to in the legislation of the
great majority of countries and by a significant number of constitutions, as well as by
several international and regional instruments, which justifies the Committee’s
interventions on the issue. Indeed, the principles developed by the supervisory bodies
have the sole objective of ensuring that this right does not remain a theoretical
instrument, but is duly recognized and respected in practice. For all of these reasons, and
in light of the fact that the Committee of Experts has never considered the right to strike
to be an absolute and unlimited right, 260 and that it has sought to establish limits to the
right to strike in order to be able to determine any cases of abuse and the sanctions that
may be imposed. The view taken concerning the right to strike and the principles
developed over time on a tripartite basis, as in many other fields, should give rise to little
controversy. The Committee further observes that employers’ organizations also
sometimes invoke the principles developed by the supervisory bodies concerning strikes
and very tangible related matters, particularly with regard to the freedom to work of nonstrikers,
the non-payment of strike days, access of the management to enterprise
installations in the event of a strike, the imposition of compulsory arbitration by
unilateral decision of trade unions and protest action by employers against economic and
social policy.
120. The affirmation of the right to strike by the supervisory bodies lies within the
broader framework of the recognition of this right at the international level, particularly
in the International Covenant on Economic, Social and Cultural Rights of the United
Nations (Article 8, paragraph 1(d)), 261 which, to date, has been ratified by 160 countries,
most of which are ILO members, as well as in a number of regional instruments, as
indicated in paragraph 35 of the present Survey. It is in the context of the Council of
Europe that the protection of the right to strike is the most fully developed at the regional
level, in light of the abundant case law of the European Committee of Social Rights, the
supervisory body for the application of the European Social Charter adopted in 1961 and
revised in 1996, which sets out this right.
121. Other ILO instruments also refer to the right to strike, and principally the Abolition
of Forced Labour Convention, 1957 (No. 105), which prohibits the use of any form of
forced or compulsory labour as a punishment for having participated in strikes, and the
Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), which
indicates that the parties should be encouraged to abstain from strikes and lockouts in the
event of voluntary conciliation and arbitration, and that none of its provisions may be
interpreted as limiting, in any way whatsoever, the right to strike. Certain resolutions
also make reference to this right. 262
122. Each year, the Committee examines many individual cases relating to national
provisions regulating strikes, most frequently without being challenged by the
governments concerned, which generally adopt measures to give effect to the comments
of the Committee of Experts. Over the years, the supervisory bodies have specified a
260 During the discussion of the 1994 General Survey, the Employer members felt it important to note “that they
were not so much criticizing the fact that the Committee of Experts wanted to recognize the right to strike in
principle, but rather that it took as a point of departure a comprehensive and unlimited right to strike” (Record of
Proceedings, ILC, 81st Session, Geneva, 1994, Part I, General Report, para. 121, p. 25/33).
261 The Committee on Economic, Social and Cultural Rights recommends States parties to take the necessary
measures with a view to ensuring the full exercise of the right to strike, or relaxing the limitations imposed on this
right.
262 See, in particular, the resolution adopted in 1970 by the ILC concerning trade union rights and their relation to
civil liberties.
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series of elements concerning the peaceful exercise of the right to strike, its objectives
and the conditions for its legitimate exercise, which may be summarized as follows:
(i) the right to strike is a right which must be enjoyed by workers’ organizations (trade
unions, federations and confederations); (ii) as an essential means of defending the
interests of workers through their organizations, only limited categories of workers may
be denied this right and only limited restrictions may be imposed by law on its exercise;
(iii) the objectives of strikes must be to further and defend the economic and social
interests of workers and; (iv) the legitimate exercise of the right to strike may not result
in sanctions of any sort, which would be tantamount to acts of anti-union discrimination.
Accordingly, subject to the restrictions authorized, a general prohibition of strikes is
incompatible with the Convention, although the supervisory bodies accept the
prohibition of wildcat strikes. Furthermore, strikes are often called by federations and
confederations which, in the view of the Committee, should be recognized as having the
right to strike. Consequently, legislation which denies them this right is incompatible
with the Convention. 263
Recognition at the national level
123. Although the exercise of the right to strike is in most countries fairly commonly
subject to certain conditions or restrictions, the principle of this right as a means of
action of workers’ organizations is almost universally accepted. In a very large number
of countries, the right to strike is now explicitly recognized, including at the
constitutional level. 264 The Committee has noted with satisfaction, for example, in
relation to the African continent, the recent repeal of provisions prohibiting the right to
strike in Liberia, 265 and the repeal of significant restrictions on the right to strike which
remained in the United Republic of Tanzania. 266 It has also noted with satisfaction the
definition of strikes set out in the new Labour Code of Burkina Faso, 267 under the terms
of which a strike is understood as being a concerted and collective cessation of work
with a view to supporting occupational demands and ensuring the defence of the material
and moral interests of workers.
Modalities
124. In the legislation of several countries, “political strikes” are explicitly or tacitly
deemed unlawful. 268 The Committee considers that strikes relating to the Government’s
economic and social policies, including general strikes, are legitimate and therefore
263 See, for example, Colombia – CEACR, observation, 2010; Ecuador – CEACR, observation, 2010; Honduras
– CEACR, observation, 2010; and Panama – CEACR, observation, 2011.
264 See, for example, Albania, Algeria, Angola, Argentina, Armenia, Azerbaijan, Belarus, Benin, Plurinational
State of Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Cape
Verde, Central African Republic, Chad, Chile, Colombia, Congo, Czech Republic, Democratic Republic of the
Congo, Costa Rica, Côte d’Ivoire, Croatia, Cyprus, Djibouti, Dominican Republic, Ecuador, El Salvador,
Estonia, Ethiopia, France, Georgia, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras,
Hungary, Italy, Kazakhstan, Kenya, Republic of Korea, Kyrgyzstan, Latvia, Lithuania, Luxembourg, The former
Yugoslav Republic of Macedonia, Madagascar, Republic of the Maldives, Mali, Mauritania, Mexico, Republic of
Moldova, Montenegro, Morocco, Mozambique, Nicaragua, Niger, Panama, Paraguay, Peru, Philippines,
Poland, Portugal, Romania, Russian Federation, Rwanda, San Marino, Sao Tome and Principe, Senegal, Serbia,
Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Suriname, Timor-Leste, Togo, Turkey,
Ukraine, United States, Uruguay and Bolivarian Republic of Venezuela.
265 Liberia – CEACR, observation, 2009.
266 United Republic of Tanzania – CEACR, observation, 2005.
267 Burkina Faso – CEACR, observation, 2010.
268 See, for example, Gabon – CEACR, direct request, 2004; Nigeria – CEACR, observation, 2011; Panama –
CEACR, observation, 2011; Paraguay – CEACR, observation, 2011; and Turkey – CEACR, observation, 2010.
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should not be regarded as purely political strikes, which are not covered by the principles
of the Convention. In its view, trade unions and employers’ organizations responsible for
defending socio-economic and occupational interests should be able to use, respectively,
strike action or protest action to support their position in the search for solutions to
problems posed by major social and economic policy trends which have a direct impact
on their members. 269 Moreover, noting that a democratic system is fundamental for the
free exercise of trade union rights, the Committee considers that, in a situation in which
they deem that they do not enjoy the fundamental liberties necessary to fulfil their
mission, trade unions and employers’ organizations would be justified in calling for the
recognition and exercise of these liberties and that such peaceful claims should be
considered as lying within the framework of legitimate trade union activities, 270
including in cases when such organizations have recourse to strikes.
125. With regard to so-called “sympathy” strikes, the Committee considers that a
general prohibition of this form of strike action could lead to abuse, particularly in the
context of globalization characterized by increasing interdependence and the
internationalization of production, and that workers should be able to take such action,
provided that the initial strike they are supporting is itself lawful. 271 It has noted in
particular the recognition in Croatia 272 of the right to call sympathy strikes in national
legislation and the recognition of this right for public servants in the current collective
agreement. It has also noted with interest the repeal from the Constitution of Turkey 273
of the provision which prohibited “politically motivated strikes and lockouts, solidarity
strikes and lockouts, occupation of work premises, labour go-slows, and other forms of
obstruction”.
126. Finally, in the view of the Committee, any work stoppage, however brief and
limited, may generally be considered as a strike, and restrictions in this respect can
only be justified if the action ceases to be peaceful. 274 “Go-slow strikes” and “work-torule”
actions are also covered by the principles developed. However, certain countries
continue to consider these forms of strike action as unfair labour practices, which can be
punished by fines, removal from trade union office and other sanctions. 275
Permitted restrictions and compensatory guarantees
127. The right to strike is not absolute and may be restricted in exceptional
circumstances, or even prohibited. Over and above the armed forces and the police, the
members of which may be excluded from the scope of the Convention in general, other
restrictions on the right to strike may relate to: (i) certain categories of public servants;
(ii) essential services in the strict sense of the term; and (iii) situations of acute national
or local crisis, although only for a limited period and solely to the extent necessary to
269 The Committee on Freedom of Association has considered, in the particular case of a complaint presented by
employers, that employers, like workers, should be able to have recourse to protest strikes (or action) against a
government’s economic and social policies (Case No. 2530 (Uruguay), Report No. 348, para. 1190).
270 See, for example, Swaziland – CEACR, observation, 2011.
271 In its report under art. 19 of the Constitution, the Government of New Zealand indicates that the reason for
which it has not ratified Convention No. 87 is related to the fact that “ILO jurisprudence requires that sympathy
strikes and strikes on general social and economic issues should be able to occur without legal penalty”.
272 Croatia – CEACR, observations, 1999 and 2004.
273 Turkey – CEACR, observation, 2011.
274 General Survey, 1994, para. 173.
275 See, for example, Pakistan – CEACR, observation, 2010 (a work slowdown is considered an unfair labour
practice).
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meet the requirements of the situation. In these cases, compensatory guarantees should
be provided for the workers who are thus deprived of the right to strike.
128. In this context, the Committee has noted with concern the potential impact of the
recent case law of the Court of Justice of the European Communities (CJEC) concerning
the exercise of the right to strike, and particularly the fact that in recent rulings the Court
has found that the right to strike could be subject to restrictions where its effects may
disproportionately impede an employer’s freedom of establishment or freedom to
provide services. 276 In a communication dated 29 August 2011, the European Trade
Union Confederation (ETUC) drew the Committee’s attention to its particular concerns
with respect to the impact of recent decisions of the Court of Justice of the European
Union (Viking, Laval, Ruffert and Luxembourg) on freedom of association rights and the
effective recognition of collective bargaining. While the ETUC has asked the Committee
to determine whether these decisions are compatible with Conventions Nos 87 and 98,
the Committee recalls, as it had when examining similar matters with respect to the
United Kingdom, that its mandate is limited to reviewing the application of Conventions
in a given member State. The Committee nevertheless takes note with interest of recent
initiatives of the European Commission to clarify the import of these judgments and
looks forward to learning of the progress made in this regard.
Public service
129. Taking into account the importance of ensuring the continuity of the functions of
the three branches of the State (the legislative, executive and judicial authorities) and of
essential services, the Committee of Experts and the Committee on Freedom of
Association consider that States may restrict or prohibit the right to strike of public
servants “exercising authority in the name of the State”. 277 Decisions implementing
this principle at the national level vary. For example, in Switzerland, 278 although
previously all federal officials were denied the right to strike, an ordinance now limits
this prohibition to officials exercising authority in the name of the State.
130. Several States prohibit or impose restrictions on the right to strike in the public
service which go beyond the framework established by the Committee. 279 These
restrictions relate in particular to teachers. Nevertheless, the Committee considers that
public sector teachers are not included in the category of public servants “exercising
authority in the name of the State” and that they should therefore benefit from the right
to strike without being liable to sanctions, even though, under certain circumstances, the
276 United Kingdom – CEACR, observations, 2010 and 2011. CJEC, 11 December 2007, International Transport
Workers’ Federation and Finnish Seaman’s Union v. Viking Line ABP, Case C-438/05, and CJEC, 19 December
2007, Laval un Partneri v. Svenska Byggnadsarbetareforbundet, Case C-341/05.
277 See Digest of decisions and principles of the Freedom of Association Committee, 2006, para. 541, and
General Survey, 1994, paras 158 et seq. For an example of the definition of the category of workers “exercising
authority in the name of the State”, see, Denmark – CEACR, direct request, 2010. See, for example, as regards
the prohibition of the right to strike of customs officers, Committee on Freedom of Association, Case No. 2288
(Niger), Report No. 333.
278 Switzerland – CEACR, direct request, 2011.
279 See, for example, Albania – CEACR, observation, 2010; Bulgaria – CEACR, observation, 2011; El Salvador
– CEACR, direct request, 2010; Estonia – CEACR, observation, 2010; Japan – CEACR, observation, 2010 (in its
report under art. 19 of the Constitution, the Government of Japan indicates that it is currently examining the issue
of whether the right to strike should be granted in the public sector); Kazakhstan – CEACR, observation, 2011;
Lesotho – CEACR, observation, 2011; Niger – CEACR, observation, 2011; Panama – CEACR, observation,
2011; and United Republic of Tanzania – CEACR, observation, 2010.
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maintenance of a minimum service may be envisaged in this sector. 280 This principle
should also apply to postal workers and railway employees, 281 as well as to civilian
personnel in military institutions when they are not engaged in the provision of essential
services in the strict sense of the term. 282
Essential services
131. The second acceptable restriction on strikes concerns essential services. The
Committee considers that essential services, for the purposes of restricting or prohibiting
the right to strike, are only those “the interruption of which would endanger the life,
personal safety or health of the whole of part of the population”. 283 This concept is not
absolute in its nature in so far as a non-essential service may become essential if the
strike exceeds a certain duration or extent, or as a function of the special characteristics
of a country (for example, an island State). In practice, national legislation fairly
frequently has recourse to the concept of essential services to limit or prohibit the right
to strike. This may range from a relatively short limitative enumeration to a long list
which is included in the law itself. In extreme cases, the legislation provides that a mere
statement to this effect by the authorities suffices to justify the essential nature of the
service. However, in certain countries, such as Bulgaria, 284 the right to strike can be
exercised throughout the public service and in all services termed essential for the
community.
132. In practice, the manner in which strikes are viewed at the national level varies
widely: several States continue to define essential services too broadly, 285 or leave too
much discretion to the authorities to unilaterally declare a service essential; 286 others
allow strikes to be prohibited on the basis of their potential economic consequences 287
(particularly in EPZs and recently established enterprises), 288 or prohibit strikes on the
basis of the potential detriment to public order or to the general or national interest. 289
Such provisions are not compatible with the principles relating to the right to strike.
133. In still other countries, such as Colombia, 290 it is left to the higher judicial
authorities to determine, on a case-by-case basis, the essential nature of a service, even
where there is a general definition in law in this respect. Finally, in other cases, the
280 See, for example, Germany – CEACR, observation, 2010.
281 ibid.
282 See, for example, Angola – CEACR, direct request, 2010.
283 General Survey, 1994, para. 159.
284 Bulgaria – CEACR, observation, 2008 (removal of the prohibition of strikes in the energy, communications
and health sectors).
285 See, for example, Chile – CEACR, observation, 2010.
286 See, for example, Zimbabwe – CEACR, observation, 2011.
287 See, for example, Australia – CEACR, observation, 2010; Benin – CEACR, observation, 2001; and Chile –
CEACR, observation, 2010.
288 See, for example, Bangladesh – CEACR, observation, 2010 (prohibition of strikes for three years from the
date of commencement of production in a new establishment); and Panama – CEACR, observation, 2011 (denial
of the right to strike in enterprises less than two years old).
289 See, for example, Antigua and Barbuda – CEACR, observation, 2010; Bangladesh – CEACR, observation,
2010; Pakistan – CEACR, observation, 2010; Philippines – CEACR, observation, 2011; Seychelles – CEACR,
observation, 2011; Swaziland – CEACR, observation, 2001; and Zambia – CEACR, observation, 2011.
290 Colombia – CEACR, observation, 2010 (ruling on appeal for cassation of the Labour Chamber of the
Supreme Court of Justice of 3 June 2009 (Case No. 40428)).
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determination of essential services is the outcome of a joint decision by the parties
through an agreement between the social partners, such as in Cyprus. 291 In this context,
the Committee has noted with satisfaction several cases of interesting progress, including
the repeal in Guatemala 292 of the prohibition of strikes or the suspension of work by
workers in enterprises or services the interruption of which would, in the opinion of the
Government, seriously affect the national economy; the removal in Turkey 293 of the
imposition of compulsory arbitration to prevent a strike in EPZs and; the repeal in
Cyprus 294 of provisions granting the Council of Ministers discretionary power to
prohibit strikes in the services that it considers essential.
Activities not considered as essential services
134. When examining concrete cases, the ILO supervisory bodies have considered that
it should be possible for strikes to be organized by workers in both the public and private
sectors in numerous services, including the following: the banking sector, 295
railways, 296 transport services and public transport, 297 air transport services and civil
aviation, 298 teachers and the public education service, 299 the agricultural sector, 300 fuel
distribution services 301 and the hydrocarbon, natural gas and petrochemical sector, 302
coal production, 303 maintenance of ports and airports, 304 port services and authorities 305
291 Cyprus – CEACR, observation, 2006.
292 Guatemala – CEACR, observation, 2002.
293 Turkey – CEACR, observation, 2005.
294 Cyprus – CEACR, observation, 2008.
295 See, for example, Botswana – CEACR, observation, 2011; Belize – CEACR, observation, 2010; Plurinational
State of Bolivia – CEACR, observation, 2010; Ghana – CEACR, direct request, 2010; Mexico – CEACR,
observation, 2011; Nigeria – CEACR, observation, 2011; Sao Tome and Principe – CEACR, observation, 2010;
Togo – CEACR, observation, 2011; Trinidad and Tobago – CEACR, observation, 2011; and Turkey – CEACR,
observation, 2010.
296 See, for example, Azerbaijan – CEACR, observation, 2010; Bangladesh – CEACR, observation, 2010;
Botswana – CEACR, observation, 2011; Costa Rica – CEACR, observation, 2010; Germany – CEACR,
observation, 2010; Indonesia – CEACR, observation, 2010; Kyrgyzstan – CEACR, direct request, 2010; Pakistan
– CEACR, observation, 2010; Russian Federation – CEACR, observation, 2011; and Turkey – CEACR,
observation, 2010.
297 See, for example, Azerbaijan – CEACR, observation, 2010; Botswana – CEACR, observation, 2011; Ecuador
– CEACR, observation, 2010; Ethiopia – CEACR, observation, 2011; Ghana – CEACR, direct request, 2010;
Guatemala – CEACR, observation, 2011; Guinea – CEACR, observation, 2011; Nigeria – CEACR, observation,
2011; Panama – CEACR, observation, 2011; Turkey – CEACR, observation, 2010; and United Kingdom (Jersey)
– CEACR, observation, 2011.
298 See, for example, Bangladesh – CEACR, observation, 2010; Belize – CEACR, observation, 2010; Costa Rica
– CEACR, observation, 2010; Ethiopia – CEACR, observation, 2011; Ghana – CEACR, direct request, 2010;
Kyrgyzstan – CEACR, direct request, 2010; Pakistan – CEACR, observation, 2010; and Uganda – CEACR,
direct request, 2011.
299 See, for example, Canada – CEACR, observation, 2010 (British Colombia and Manitoba); Germany CEACR,
observation, 2010; Togo – CEACR, observation, 2011; Trinidad and Tobago – CEACR, observation, 2011; and
Turkey – CEACR, observation, 2010.
300 See, for example, Chile – CEACR, observation, 2010.
301 See, for example, Ecuador – CEACR, observation, 2010; Ghana – CEACR, direct request, 2010; Guatemala
– CEACR, observation, 2011; and Mozambique – CEACR, observation, 2011.
302 See, for example, Bangladesh – CEACR, observation, 2010; Belize – CEACR, observation, 2010; Ecuador –
CEACR, observation, 2010; and Turkey – CEACR, observation, 2010.
303 See, for example, Turkey – CEACR, observation, 2010.
304 See, for example, Nigeria – CEACR, observation, 2011.
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and loading and unloading services for ships, 306 postal services, 307 municipal
services, 308 services for the loading and unloading of animals 309 and of perishable
foodstuffs, 310 EPZs, 311 government printing services, 312 road cleaning and refuse
collection, 313 radio and television, 314 hotel services 315 and construction. 316
Activities considered as essential services
135. When examining concrete cases, the ILO supervisory bodies have considered that
essential services in the strict sense of the term may include air traffic control
services, 317 telephone services 318 and the services responsible for dealing with the
consequences of natural disasters, as well as firefighting services, health and ambulance
services, prison services, the security forces and water and electricity services. The
Committee has also considered that other services (such as meteorological services and
social security services) include certain components which are essential and others that
are not.
Negotiated minimum service
136. In situations in which a substantial restriction or total prohibition of strike action
would not appear to be justified and where, without calling into question the right to
strike of the large majority of workers, consideration might be given to ensuring that
users’ basic needs are met or that facilities operate safely or without interruption, the
introduction of a negotiated minimum service, as a possible alternative to a total
prohibition of strikes, could be appropriate. In the view of the Committee, the
maintenance of minimum services in the event of strikes should only be possible in
certain situations, namely: (i) in services the interruption of which would endanger the
life, personal safety or health of the whole or part of the population (or essential services
“in the strict sense of the term”); (ii) in services which are not essential in the strict sense
of the term, but in which strikes of a certain magnitude and duration could cause an
305 See, for example, Antigua and Barbuda – CEACR, observation, 2010; Dominica – CEACR, observation,
2010; Ghana – CEACR, direct request, 2010; Grenada – CEACR, direct request, 2010; Guyana – CEACR,
observation, 2011; and Pakistan – CEACR, observation, 2010.
306 See, for example, Costa Rica – CEACR, observation, 2010; Grenada – CEACR, direct request, 2010; and
Guyana – CEACR, observation, 2011.
307 See, for example, Belize – CEACR, observation, 2010; Ecuador – CEACR, observation, 2010; Germany –
CEACR, observation, 2010; Mozambique – CEACR, observation, 2011; Nigeria – CEACR, observation, 2011;
Pakistan – CEACR, observation, 2010; and Russian Federation – CEACR, observation, 2011.
308 See, for example, Russian Federation – CEACR, observation, 2011.
309 See, for example, Mozambique – CEACR, observation, 2011; and Nigeria – CEACR, observation, 2011.
310 See, for example, Dominica – CEACR, observation, 2010; and Mozambique – CEACR, observation, 2011.
311 See, for example, Mozambique – CEACR, observation, 2011.
312 See, for example, Antigua and Barbuda – CEACR, observation, 2010; and Nigeria – CEACR,
observation, 2011.
313 See, for example, Nigeria – CEACR, observation, 2011.
314 See, for example, Committee on Freedom of Association, Case No. 1884 (Swaziland), Report No. 306.
315 See, for example, Committee on Freedom of Association, Case No. 2120 (Nepal), Report No. 328.
316 See, for example, Committee on Freedom of Association, Case No. 2326 (Australia), Report No. 338.
317 See, for example, Nigeria – CEACR, observation, 2010.
318 See, for example, Kyrgyzstan – CEACR, direct request, 2011.
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acute crisis threatening the normal conditions of existence of the population; and (iii) in
public services of fundamental importance.
137. However, such a service should meet at least two requirements: (i) it must
genuinely and exclusively be a minimum service, that is one which is limited to the
operations which are strictly necessary to meet the basic needs of the population or the
minimum requirements of the service, while maintaining the effectiveness of the
pressure brought to bear; and (ii) since this system restricts one of the essential means of
pressure available to workers to defend their interests, their organizations should be able,
if they so wish, to participate in defining such a service, along with employers and the
public authorities. 319 Moreover, a minimum service may always be required, whether or
not it is in an essential service in the strict sense of the term, to ensure the security of
facilities and the maintenance of equipment.
138. The Committee emphasizes the importance of adopting explicit legislative
provisions on the participation of the organizations concerned in the definition of
minimum services. 320 Moreover, any disagreement on minimum services should be
resolved, not by the government authorities, as is the case in certain countries, 321 but by
a joint or independent body which has the confidence of the parties, responsible for
examining rapidly and without formalities the difficulties raised and empowered to issue
enforceable decisions. However, in practice, the legislation in certain countries continues
to determine unilaterally and without consultation the level at which a minimum service
is to be provided and to require that a specific percentage of the service is provided
during the strike. 322 Others authorize the public authorities to determine minimum
services at their discretion, without consultation, 323 or require the judicial authorities to
issue an order for this purpose. 324
139. In this context, the Committee has noted several interesting cases of progress,
including the establishment and tripartite composition of the Guarantees Commission,
which is entrusted with determining minimum services in Argentina; 325 the amendment
of the Law on Strikes in Montenegro, 326 which now provides that, when determining the
minimum service, the employer shall be obliged to obtain an opinion from the competent
body of the authorized trade union organization, or more than half of the employees; the
introduction in Guatemala 327 of a minimum service in essential public services
determined with the participation of the parties and the judicial authorities; and the
decision in Peru 328 that in the case of disagreement on the number and occupation of the
319 General Survey, 1994, para. 161.
320 See, for example, Republic of Moldova – CEACR, observation, 2011; and Panama – CEACR, observation,
2011.
321 See, for example, Cambodia – CEACR, direct request, 2011; and Cape Verde – CEACR, direct request, 2011.
322 See, for example, Bulgaria – CEACR, observation, 2011 (in the railways); and Romania – CEACR,
observation, 2011 (in the field of transport).
323 See, for example, Armenia – CEACR, direct request, 2011; Chad – CEACR, observation, 2010; Paraguay –
CEACR, observation, 2011; and Turkey – CEACR, observation, 2010.
324 See, for example, Mauritius – CEACR, direct request, 2011.
325 Argentina – CEACR, observation, 2011. In contrast, in Mexico, the National Banking Commission
responsible for ensuring that the indispensable number of agencies remain open during a strike is not a tripartite
body.
326 Montenegro – CEACR, direct request, 2011.
327 Guatemala – CEACR, observation, 2002.
328 Peru – CEACR, direct request, 2011.
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workers who are to continue working, the labour authority shall designate an
independent body for their determination.
Situations of acute national or local crisis
140. The third restriction on the right to strike relates to situations of acute national
or local crisis. As general prohibitions of strikes resulting from emergency or
exceptional powers constitute a major restriction on one of the essential means available
to workers, the Committee considers that they are only justified in a situation of acute
crisis, and then only for a limited period and to the extent necessary to meet the
requirements of the situation. This means genuine crisis situations, such as those arising
as a result of a serious conflict, insurrection or natural, sanitary or humanitarian disaster,
in which the normal conditions for the functioning of society are absent. 329
Compensatory guarantees for workers deprived
of the right to strike
141. When the right to strike is restricted or prohibited in certain enterprises or services
considered essential, or for certain public servants exercising authority in the name of the
State, the workers should be afforded adequate protection so as to compensate for the
restrictions imposed on their freedom of action. Such protection should include, for
example, impartial conciliation and eventually arbitration procedures which have the
confidence of the parties, in which workers and their organizations could be
associated. 330 Such arbitration awards should be binding on both parties and once issued
should be implemented rapidly and completely.
Restrictions on strikes during the term
of a collective agreement
142. The legislation in certain countries does not establish any restrictions on the time
when a strike may be initiated, stipulating only that the advance notice established by the
law or by collective agreement must be observed. In other systems, collective
agreements are seen as a social peace treaty of fixed duration during which strikes and
lockouts are prohibited. The Committee considers that both these options are compatible
with the Convention. In both types of systems, however, workers’ organizations should
not be prevented from striking against the social and economic policy of the Government,
in particular where the protest is not only against that policy but also against its effects
on some provisions of collective agreements. If legislation prohibits strikes during the
term of collective agreements, this restriction must be compensated by the right to have
recourse to impartial and rapid arbitration machinery for individual or collective
grievances concerning the interpretation or application of collective agreements. 331
143. EPZs. A number of countries establish a special system of industrial relations in
EPZs which specifically or indirectly prohibits strikes in such zones. 332 In the view of
the Committee, such prohibitions are incompatible with the principles of
non-discrimination which must prevail in the implementation of the Convention. It has
329 General Survey, 1994, para. 152.
330 Switzerland – CEACR, direct request, 2011.
331 General Survey, 1994, paras 166–167.
332 See, for example, Pakistan – CEACR, observation, 2011 (information provided by the International Trade
Union Confederation); and Panama – CEACR, observation, 2011.
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therefore noted with satisfaction, among other measures, the repeal in Turkey 333 of the
provision under which compulsory arbitration was imposed for a ten-year period in EPZs
for the settlement of collective labour disputes; and the repeal in Namibia 334 of the
provision which prohibited any employee from taking action by calling, or participating
in a strike in an EPZ, under the threat of a disciplinary penalty or dismissal.
Prerequisites
Exhaustion of prior procedures (conciliation,
mediation and voluntary arbitration)
144. A large number of countries require advance notice of strikes to be given to the
administrative authorities or to the employer and/or establish an obligation to have
recourse to prior conciliation and voluntary arbitration procedures in collective disputes
before a strike may be called. 335 In the view of the Committee, such machinery should,
however, have the sole purpose of facilitating bargaining and should not be so complex
or slow that a lawful strike becomes impossible in practice or loses its effectiveness. 336
With regard to the duration of prior conciliation and arbitration procedures, the
Committee has considered, for example, that the imposition of a duration of over
60 working days as a prior condition for the exercise of a lawful strike may make the
exercise of the right to strike difficult, or even impossible. In other cases, it has proposed
reducing the period fixed for mediation. 337 The situation is also problematic when
legislation does not set any time limit for the exhaustion of prior procedures and confers
full discretion on the authorities to extend such procedures. 338
Advance notice, cooling-off periods and the
duration of strikes
145. In a large number of countries, there is a requirement to comply with a notice
period or a cooling-off period before calling a strike. 339 In so far as they are conceived
as a stage designed to encourage the parties to engage in final negotiations before
resorting to strike action, such provisions may be seen as measures taken to encourage
and promote the development of voluntary bargaining. Again, however, the period of
advance notice should not be an additional obstacle to bargaining, and should be shorter
if it follows a compulsory prior mediation or conciliation procedure which itself is
already lengthy. For example, the Committee has considered that advance notice of
60 days is excessive. 340
333 Turkey – CEACR, observation, 2005.
334 Namibia – CEACR, observation, 2003.
335 See, for example, Democratic Republic of the Congo – CEACR, direct request, 2011; Libya – CEACR,
observation, 2011; and United Republic of Tanzania (Zanzibar) – CEACR, observation, 2010.
336 General Survey, 1994, para. 171.
337 United Republic of Tanzania (Zanzibar) – CEACR, observation, 2011.
338 See, for example, Kiribati – CEACR, observation, 2011.
339 See, for example, Burundi – CEACR, direct request, 2011; Honduras – CEACR, observation, 2010;
Mozambique – CEACR, observation, 2011; Seychelles – CEACR, observation, 2011; United Republic of
Tanzania (Zanzibar) – CEACR, observation, 2011; and Tunisia – CEACR, observation, 2011.
340 United Republic of Tanzania – CEACR, observation, 2011.
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146. Finally, in certain cases, the advance notice must be accompanied by an indication
of the duration of the strike, under the threat that workers may be liable to sanctions if
they participate in a strike the duration of which is not specified in the notification. 341
The Committee considers that workers and their organizations should be able to call a
strike for an indefinite period if they so wish. 342
Quorum and majority required to call a strike
147. Certain countries provide that, to be able to call a strike, it must be so decided by
two-thirds 343 or three-quarters 344 of workers. In general, the Committee considers that
requiring a decision by over half of the workers involved in order to declare a strike is
excessive and could unduly hinder the possibility of calling a strike, particularly in large
enterprises. 345 In the Committee’s view, if a country deems it appropriate to require a
vote by workers before a strike can be held, it should ensure that account is taken only of
the votes cast, and that the required quorum and majority are fixed at a reasonable
level. 346 For example, the observance of a quorum of two-thirds of those present may be
difficult to reach and could restrict the right to strike in practice. 347 In this context, it has
noted with satisfaction, among other measures, the legislative amendment in Latvia 348
which reduced the quorum required to declare a strike from three-quarters to one half of
the members of a trade union or a company participating in the respective meeting.
Similarly, in Guatemala, 349 the requirement to obtain the votes of two-thirds of the
members of a trade union to decide whether or not to call a strike has been removed and
it is now sufficient to obtain a vote in favour of half plus one of the members
constituting the quorum of the respective assembly.
Prior approval and supervision of strike ballots
148. The Committee considers that the requirement set out in law to obtain prior
approval of a strike by a higher level trade union organization 350 is an impediment to the
freedom of choice of the organizations concerned to organize their activities.
Furthermore, it considers that the control or supervision of the strike ballot by the
341 See, for example, Burundi – CEACR, direct request, 2011; Bulgaria – CEACR, observation, 2011; Egypt –
CEACR, direct request, 2011; Georgia – CEACR, observation, 2010; Kyrgyzstan – CEACR, direct request,
2011; Mongolia – CEACR, direct request, 2011; Mozambique – CEACR, observation, 2011; and Tajikistan –
CEACR, direct request, 2011.
342 See, for example, Chad – CEACR, observation, 2010; Mozambique – CEACR, observation, 2011; and
Tunisia – CEACR, observation, 2011.
343 See, for example, Armenia – CEACR, direct request, 2011; Honduras – CEACR, observation, 2010; and
Mexico – CEACR, observation, 2011.
344 See, for example, Bangladesh – CEACR, observation, 2010; and Plurinational State of Bolivia – CEACR,
observation, 2010.
345 See, for example, Armenia – CEACR, direct request, 2011; Plurinational State of Bolivia – CEACR,
observation, 2010; and Mauritius – CEACR, direct request, 2011.
346 General Survey, 1994, para. 170.
347 See, for example, Czech Republic – CEACR, direct request, 2011; Kazakhstan – CEACR, observation, 2011;
and Tajikistan – CEACR, direct request, 2011.
348 Latvia – CEACR, observation, 2007.
349 Guatemala – CEACR, observation, 2002.
350 Such approval is required, for example, in Egypt – CEACR, observation, 2011; and Tunisia – CEACR,
observation, 2011.
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administrative authority 351 constitutes an act of interference in trade union activities that
is incompatible with the Convention, unless the trade unions so request, in accordance
with their own rules.
The course of the strike
Picketing, occupation of the workplace, access
to the enterprise and freedom of work
149. Strike action is often accompanied by the presence, at the entry to the workplace,
of strike pickets aimed at ensuring the success of the strike by persuading the workers
concerned to stay away from work. In the view of the Committee, in so far as the strike
remains peaceful, strike pickets and workplace occupations should be allowed.
Restrictions on strike pickets and workplace occupations can only be accepted where the
action ceases to be peaceful. It is however necessary in all cases to guarantee respect for
the freedom to work of non-striking workers and the right of the management to enter
the premises. In practice, while certain countries establish very general rules which are
confined to avoiding violence and protecting the right to work and the right to property,
others explicitly limit or prohibit the right to establish strike pickets 352 or the occupation
of the workplace during a strike. 353 The Committee considers that, in cases of strikes,
the authorities should only resort to the use of force in exceptional circumstances and
in situations of gravity where there is a serious threat of public disorder, and that such
use of force must be proportionate to the circumstances.
150. Several complaints have been presented by employers’ organizations to the
Committee on Freedom of Association concerning issues relating to the right to strike.
The principal subjects have consisted of the management being prevented from having
access to the premises of the enterprise during the strike, the conditions relating to the
payment of wages to striking workers, the freedom of work of non-striking workers and
the modalities governing compulsory arbitration by unilateral decision of trade union
organizations. The Committee has considered that the requirement by law of the closing
down of the enterprise, establishment or business in the event of a strike could be an
infringement of the freedom of work of non-strikers and could disregard the basic needs
of the enterprise (maintenance of equipment, prevention of accidents and the right of
directors and managerial staff to enter the installations of the enterprise and to exercise
their activities), and accordingly raises problems of compatibility with the Convention. It
has also considered that a stable labour relations system should take account of the rights
and obligations of both workers’ organizations and of employers and their
organizations. 354 In this context, the Committee has noted with satisfaction, for example,
the amendment of the legislation in Panama, 355 which now provides that the owners,
directors, managing director, the staff closely involved in these functions and workers in
positions of trust shall be able to enter the enterprise during the strike, provided that their
351 Such supervision is carried out, for example, in Angola – CEACR, direct request, 2010; Bahamas – CEACR,
observation, 2010; Colombia – CEACR, observation, 1997; Swaziland – CEACR, observation, 2010; and United
Republic of Tanzania – CEACR, observation, 2011.
352 See, for example, United Republic of Tanzania – CEACR, observation, 2011.
353 See, for example, Burkina Faso – CEACR, observation, 2010 (prohibition under the penalty of penal
sanctions); Côte d’Ivoire – CEACR, direct request, 2010; Mauritania – CEACR, direct request, 2011 (prohibition
under penalty of penal sanctions); and Senegal – CEACR, observation, 2011.
354 Committee on Freedom of Association, Case No. 1931 (Panama), Report No. 310, paras 497 and 502.
355 Panama – CEACR, observation, 2011.
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purpose is not to recommence productive activities (the access of non-striking workers to
the enterprise is not, however, mentioned).
Requisitioning of strikers and hiring of external workers
151. Although certain systems continue to retain fairly broad powers to requisition
workers in the case of a strike, 356 the Committee considers that it is desirable to limit
powers of requisitioning to cases in which the right to strike may be limited, or even
prohibited, namely: (i) in the public service for public servants exercising authority in
the name of the State; (ii) in essential services in the strict sense of the term; and (iii) in
the case of an acute national or local crisis.
152. The Committee also recalls that the maintaining of the employment relationship is
a normal legal consequence of recognition of the right to strike. However, in some
countries with the common law system strikes are regarded as having the effect of
terminating the employment contract, leaving employers free to replace strikers with
new recruits. 357 The Committee considers that provisions allowing employers to
dismiss strikers or replace them temporarily or for an indeterminate period are a
serious impediment to the exercise of the right to strike, particularly where striking
workers are not able in law to return to their employment at the end of the dispute. The
legislation should provide for genuine protection in this respect. 358
Compulsory arbitration
153. Another means of denying the right to strike or seriously restricting its exercise
consists of the imposition of compulsory arbitration, which makes it possible to prohibit
virtually all strikes or to end them quickly. In such cases, collective labour disputes are
resolved by a final judicial award or an administrative decision that is binding on the
parties concerned, with strike action being prohibited during the procedure and once the
award has been issued. The Committee considers that recourse to compulsory arbitration
to bring an end to a collective labour dispute and a strike is only acceptable under certain
circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the
strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes
concerning public servants exercising authority in the name of the State; (b) in conflicts
in essential services in the strict sense of the term; or (c) in situations of acute national or
local crisis, but only for a limited period of time and to the extent necessary to meet the
requirements of the situation. 359 Accordingly, the existence of protracted disputes and
the failure of conciliation are not per se elements which justify the imposition of
compulsory arbitration. 360 However, the Committee also recognizes that there comes a
time in bargaining where, after protracted and fruitless negotiations, the public
authorities might be justified to step in when it is obvious that the deadlock will not be
broken without some initiative on their part. 361
356 See, for example, Angola – CEACR, direct request, 2010; Burkina Faso – CEACR, observation, 2011; and
Djibouti – CEACR, observation, 2010.
357 United Kingdom – CEACR, observation, 2011.
358 General Survey, 1994, para. 139.
359 General Survey, 1994, para. 257.
360 Kiribati – CEACR, observation, 2011.
361 General Survey, 1994, para. 258.
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154. In practice, several countries continue to authorize recourse to compulsory
arbitration, either automatically, or at the discretion of the public authorities, 362 or at the
request of one of the parties (sometimes following the exhaustion of compulsory prior
conciliation and mediation procedures). 363 In the view of the Committee, systematic
recourse to this type of procedure is tantamount in practice to a general prohibition of
strikes, which is incompatible with the Convention. Moreover, arbitration imposed by
the authorities at the request of only one of the parties is, in general, contrary to the
principles of collective bargaining. Nevertheless, many countries continue to authorize
recourse to compulsory arbitration in situations which go beyond the framework
established by the Committee, 364 particularly in cases in which disputes continue for
more than a certain period. 365
155. Other countries provide that when the conciliation attempt between the parties to
the dispute has not been successful, the dispute may be referred to a specific body
responsible for drawing up a report or recommendations which, after a certain period has
elapsed, may become enforceable if the parties to the dispute have not challenged
them. 366 The Committee considers that this type of provision may be compatible with
the Convention, on condition that the period referred to above is sufficiently long to
allow the parties the necessary time for reflection.
156. The issue of arbitration is also broadly developed in Chapter 2 below on
Convention No. 98.
Sanctions
157. The principles developed by the supervisory bodies in relation to the right to strike
are only valid for lawful strikes, conducted in accordance with the provisions of national
law, on condition that the latter are themselves in conformity with the principles of
freedom of association. They do not cover the abusive or unlawful exercise of the right
to strike, which may take various forms and may give rise to certain sanctions. If the
strike is determined by a competent judicial authority to be unlawful on the basis of
provisions that are in conformity with freedom of association principles, proportionate
362 See, for example, Botswana – CEACR, observation, 2011; Dominica – CEACR, observation, 2010; Fiji –
CEACR, observation, 2010; Honduras – CEACR, observation, 2010; Kuwait – CEACR, observation, 2011;
Mali – CEACR, observation, 2011; Mauritius – CEACR, direct request, 2011; Panama – CEACR, observation,
2010; Sri Lanka – CEACR, observation, 2011; Turkey – CEACR, observation, 2010; and United Kingdom
(Anguilla) – CEACR, direct request, 2011.
363 See, for example, Canada – CEACR, observation, 2010 (when the work stoppage exceeds 60 days);
Democratic Republic of the Congo – CEACR, direct request, 2011 (from the end of the period of strike notice);
Côte d’Ivoire – CEACR, direct request, 2010; Egypt – CEACR, observation, 2004; Fiji – CEACR, observation,
2010; Georgia – CEACR, observation, 2010 (after 14 days); Haiti – CEACR, observation, 2010; Malta –
CEACR, observation, 2010; Pakistan – CEACR, observation, 2010; Panama – CEACR, observation, 2011;
Romania – CEACR, observation, 2011; and Uganda – CEACR, observation, 2010.
364 See, for example, Burundi – CEACR, direct request, 2011 (the possibility of recourse to the Administrative
Court in the context of disputes appears to have resulted in a system of compulsory arbitration); Egypt – CEACR,
observation, 2011 (sections 179, 187, 193 and 194 of the Labour Code); Ecuador – CEACR, observation, 2010
(art. 326(12) of the Constitution); Ghana – CEACR, direct request, 2010 (section 160(2) of the Labour Act);
Mauritania – CEACR, observation, 2011 (sections 350 and 362 of the Labour Code); Mozambique – CEACR,
observation, 2011 (section 189 of the Labour Act); Panama – CEACR, observation, 2011 (sections 452 and 486
of the Labour Code); Sao Tome and Principe – CEACR, observation, 2010 (section 11 of Act No. 4/92); Togo –
CEACR, observation, 2011; Turkey – CEACR, observation, 2010 (sections 29, 30 and 32 of Act No. 2822); and
Uganda – CEACR, direct request, 2011 (sections 5(1) and (3) of the Labour Disputes Act).
365 See, for example, Nicaragua – CEACR, observation, 2011 (after 30 days of strike); and Romania – CEACR,
observation, 2011 (after 20 days).
366 See, for example, sections 242–248 of the Labour Code of Congo.
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disciplinary sanctions may be imposed against strikers (such as reprimands, withdrawal
of bonuses, etc). 367 The question of determining whether or not a strike is lawful is
therefore essential. In the view of the Committee, responsibility for declaring a strike
illegal should not lie with the government authorities, but with an independent body
which has the confidence of the parties involved. 368 In this context, the Committee has
noted with satisfaction, for example, that in Colombia 369 the legality or unlawful nature
of a collective labour suspension or stoppage shall be the subject of a judicial ruling in a
priority procedure. It should be noted that the non-payment of wages corresponding to
the period of strike is a mere consequence of the absence of work, and not a sanction.
Therefore, salary deductions for days of strike do not raise problems of compatibility
with the Convention. Ultimately, the payment of wages to striking workers is a matter
appropriate to negotiation between the parties concerned.
Penal sanctions
158. Most legislation restricting or prohibiting the right to strike provides for various
sanctions against workers and trade unions that infringe this prohibition, including penal
sanctions. 370 However, the Committee has continually emphasized that no penal
sanctions should be imposed against a worker for having carried out a peaceful strike
and thus for merely exercising an essential right, and therefore that measures of
imprisonment or fines should not be imposed on any account. Such sanctions could be
envisaged only where, during a strike, violence against persons or property, or other
serious infringements of penal law have been committed, and can be imposed
exclusively pursuant to legislation punishing such acts, such as the Penal Code (for
example, in the case of failure to assist a person in danger, deliberate injury or damage
deliberately caused to property). The concern expressed by the Committee to ensure that
sentences of imprisonment are on no account imposed on strikers is also supported by
the supervisory bodies of the United Nations, and particularly the Committee on
Economic, Social and Cultural Rights, which has considered that the imposition of such
sanctions constitutes non-compliance with the obligations of the State party to the
Covenant. 371 Despite these principles, several States continue to maintain specific penal
sanctions for strike action, 372 including imprisonment, 373 in violation of the principles
established by the Committee.
367 Kiribati – CEACR, observation, 2011; Madagascar – CEACR, observation, 2011; Mozambique – CEACR,
observation, 2011; Nigeria – CEACR, observation, 2011; Syrian Arab Republic – CEACR, observation, 2011;
Tunisia – CEACR, observation, 2011; and Zambia – CEACR, observation, 2011.
368 Certain systems are not in conformity with the Convention on this point: see, for example, Fiji – CEACR,
observation, 2010; Peru – CEACR, direct request, 2011 (this responsibility lies with the labour administrative
authority); and Uganda – CEACR, direct request, 2011 (the responsibility for declaring a strike illegal lies with
the Government).
369 Colombia – CEACR, observation, 2009.
370 It should be noted that Art. 1 of the Abolition of Forced Labour Convention, 1957 (No. 105), prohibits forced
or compulsory labour as a punishment for having participated in strikes.
371 Committee on Economic, Social and Cultural Rights of the United Nations, Concluding observations: Syrian
Arab Republic, 24 September 2001 (E/C.12/1/Add.63), para. 21. In particular, the Committee on Economic,
Social and Cultural Rights expressed “concern about the restrictions in practice reported by the ILO with regard
to the right to strike, such as the imposition of sanctions, including imprisonment, which constitutes noncompliance
with the State party’s obligation regarding article 8 of the Covenant”.
372 See, for example, Barbados – CEACR, observation, 2011; Plurinational State of Bolivia – CEACR,
observation, 2010; Burkina Faso – CEACR, observation, 2010; Chile – CEACR, observation, 2010; Congo –
CEACR, direct request, 2010; Democratic Republic of the Congo – CEACR, direct request, 2011; Guatemala –
CEACR, observation, 2010; Guyana – CEACR, observation, 2011; Kiribati – CEACR, observation, 2011;
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159. Other types of sanctions are sometimes imposed, such as fines, the closure of trade
union premises, the suspension or deregistration of the trade union concerned, 374 or the
removal from office of trade union officers. 375 The Committee considers that such
sanctions should be possible only where the prohibition of strike action is in conformity
with the Convention and the sanctions are proportionate to the seriousness of the fault
committed. In any case, a right of appeal should exist against sanctions imposed by the
authorities. Finally, certain systems are characterized by specific features and convict
strikers on the basis of more general provisions of penal legislation, such as the offence
of “obstruction of business”; 376 or provide for sentences of imprisonment for failure to
appear before the conciliator in the framework of the settlement of an industrial
dispute; 377 or provide for penal sanctions in the case of a work slowdown. 378 In the view
of the Committee, such sanctions are not compatible with the Convention. In this context,
it has noted with satisfaction, among other measures, the removal of penal sanctions for
strike action in the Republic of Moldova, 379 Guatemala 380 and the Syrian Arab
Republic. 381
Republic of Moldova – CEACR, observation, 2011; Nigeria – CEACR, observation, 2011; Tunisia – CEACR,
observation, 2011; and Ukraine – CEACR, observation, 2011.
373 See, for example, Angola – CEACR, direct request, 2010 (section 27 of Act No. 23/91 on strikes);
Azerbaijan – CEACR, observation, 2010 (section 233 of the Penal Code); Bahamas – CEACR, observation, 2010
(sections 74(3), 75(3), 76(2)(b) and 77(2) of the Industrial Relations Act); Bangladesh – CEACR, observation,
2010 (sections 196(2)(e) and 291, 294 to 296 of the Labour Act); Barbados – CEACR, observation, 2011
(section 4 of the Better Security Act, 1920); Benin – CEACR, observation, 2010 (with regard to seafarers:
Ordinance No. 38 PR/MTPTPT of 18 June 1968); Chile – CEACR, observation, 2010 (section 11 of Act No.
12927 on the internal security of the State); Democratic Republic of the Congo – CEACR, direct request, 2011
(section 326 of the Labour Code); Ecuador – CEACR, observation, 2010 (Decree No. 105 of 7 June 1967); Fiji –
CEACR, observation, 2010 (sections 256(a) and 250 of the Employment Relations Act); Guyana – CEACR,
observation, 2011 (section 19 of the Public Utility Undertakings and Public Health Services Arbitration
(Amendment) Bill, 2006); Libya – CEACR, direct request, 2011 (section 176 of the Labour Code); Madagascar –
CEACR, observation, 2011 (section 258 of the Labour Code); Netherlands (Aruba) – CEACR, observation, 2011
(section 374(a) to (c) of the Penal Code and section 82 of Ordinance No. 159 of 1964); Nigeria – CEACR,
observation, 2011 (section 30 of the Trade Union Act, as amended by section 6(d) of the Trade Union
(Amendment) Act); Pakistan – CEACR, observations, 2011 (Presidential Ordinance No. IV of 1999, which
amends the Anti-Terrorism Act) and 2010 (Essential Services Act); Philippines – CEACR, observation, 2011
(sections 264(a) and 272(a) of the Labour Code); Syrian Arab Republic – CEACR, observation, 2011 (sections
330, 332, 333 and 334 of Legislative Decree No. 148 of 1949 issuing the Penal Code); Serbia – CEACR, direct
request, 2011 (section 167 of the Penal Code); Seychelles – CEACR, observation, 2011 (section 56(1) of the
Industrial Relations Act); Tajikistan – CEACR, direct request, 2011 (section 160 of the Criminal Code); Trinidad
and Tobago – CEACR, observation, 2011 (for teachers and employees of the Central Bank); Tunisia – CEACR,
observation, 2011 (section 388 of the Labour Code); Turkey – CEACR, observation, 2010 (sections 70, 71, 72, 73
(except for subsection 3, repealed by the Constitutional Court), 77 and 79 of Act No. 2822); Ukraine – CEACR,
observation, 2011 (section 293 of the Penal Code); Uganda – CEACR, direct request, 2011 (section 29(3) of the
Labour Disputes (Arbitration and Settlement) Act); Zambia – CEACR, observation, 2011 (section 107 of the
Industrial and Labour Relations Act); and Zimbabwe – CEACR, observation, 2011 (sections 109 and 112 of the
Labour Act).
374 See, for example, Pakistan – CEACR, observation, 2010 (section 64(7) of the Industrial Relations Act); and
Zimbabwe – CEACR, observation, 2011 (section 107 of the Labour Act).
375 Pakistan – CEACR, observation, 2010.
376 Committee on Freedom of Association, Case No. 2602 (Republic of Korea), Report No. 359, paras 342–370.
377 See, for example, Bangladesh – CEACR, observation, 2010 (section 301 of the Labour Act).
378 See, for example, Pakistan – CEACR, observation, 2010.
379 Republic of Moldova – CEACR, observation, 2011.
380 Guatemala – CEACR, observation, 2002.
381 Syrian Arab Republic – CEACR, observation, 2002.
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160. It has also noted with satisfaction the adoption of provisions in Colombia 382
providing that any person who prevents a lawful assembly or engages in reprisals on
grounds of strike action, assembly or legitimate association, shall be liable to a fine of
between 100 and 300 minimum monthly wages as established by law.
Dismissal for strike action and reinstatement of strikers
161. Since the maintaining of the employment relationship is a normal consequence of
recognition of the right to strike, its lawful exercise should not result in striking workers
being dismissed or discriminated against. 383 In the view of the Committee, dismissal for
strike action in the case of a lawful strike constitutes serious discrimination based on the
exercise of lawful trade union activities, in violation of Convention No. 98. It considers
that, if the right to strike is to be effectively guaranteed, workers who participate in a
lawful strike should be able to return to work once the strike has ended and the fact of
making their return to work subject to certain time limits or the consent of the employer
is an obstacle to the effective exercise of this right. 384
Dissolution and suspension of organizations
by administrative authority
162. The dissolution and suspension of trade union organizations constitute extreme
forms of interference by the authorities in the activities of organizations and should
therefore be accompanied by all the necessary guarantees. This can only be ensured
through a normal judicial procedure, which should also have the effect of a stay of
execution. However, certain countries continue to allow the dissolution of workers’ and
employers’ organizations by administrative authority, which is a serious and direct
violation of the Convention. 385 With regard to the distribution of trade union assets in
the event of dissolution, these should be used for the purposes for which they were
acquired. The authorities and all of the organizations concerned should cooperate so that
all trade unions are able to carry out their activities in full independence and on an equal
footing. 386
Right of organizations to establish federations and
confederations and to affiliate with international
organizations
163. In order to defend the interests of their members more effectively, workers’ and
employers’ organizations should have the right to form federations and confederations
of their own choosing, which should themselves enjoy the various rights accorded to
first-level organizations, in particular as regards their freedom of operation, activities
and programmes. International solidarity of workers and employers also requires that
their national federations and confederations be able to group together and act freely at
the international level. 387
382 Colombia – CEACR, observation, 2010.
383 General Survey, 1994, para. 179.
384 See Chapter 2 below on Convention No. 98.
385 See, for example, Nigeria – CEACR, observation, 2011.
386 General Survey, 1994, paras 180 et seq.
387 General Survey, 1994, paras 189 et seq.
Document No. 237
ILC, 102nd Session, 2013, Report III (Part 1A), Report of
the Committee of Experts on the Application
of Conventions and Recommendations, General report,
para. 31
ILC.102/III(1A)
International Labour Conference, 102nd Session, 2013
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part 1A)
General Report
and observations concerning particular countries
International Labour Office Geneva
General Report
GENERAL REPORT
11
1950s, it had expressed its views on the meaning of specific ILO instruments in terms that inevitably reflected an
interpretive vocabulary.
27. Reviewing the position of the Employers’ group over the years, the Committee stressed that, historically, that
group had accepted the Committee’s interpretive role as part of its mandate. For instance, the Committee recalled that,
during the 1987 Conference Committee on the Application of Standards, addressing concerns raised by certain
governments, the Employers’ spokesperson had “rejected the argument that the CEACR had gone beyond its terms of
reference” and both the Employers’ and Workers’ spokespersons “supported the CEACR’s current methods of work.” In
the 1993 Conference Committee, the Employers’ group had remarked that “disagreements over the method and substance
of interpretations arose in only a small proportion of the vast number of comments made over the years by the Committee
of Experts”. More recently, during the 2011 Conference Committee, the Employers’ group had not responded to the
detailed discussion of the interpretive methods that the CEACR had presented in paragraphs 10–12 of its General Report,
which discussed in considerable detail: (a) the logical necessity of interpreting Conventions in order to fulfil its mandate,
(b) the necessity that its work remain committed to independence, objectivity, and impartiality, and (c) that the Committee
constantly bore in mind all different methods of interpreting treaty law, especially the Vienna Convention.
28. The Committee further stressed that its mandate derived from three main principles. First, assessment and
evaluation of textual meaning was logically integral to the application of ratified Conventions. In this regard, the
Committee noted that it needed to bring to the Conference Committee’s attention: (i) any national laws or practices not in
conformity with the Conventions, which inevitably required the evaluation and thus, a certain degree of interpretation, of
the national legislation and the text of the Convention; and (ii) in conformity with its working methods, the cases of
progress in the application of standards, which also required a degree of interpretation. Second, the equal treatment and
uniformity of the application of Conventions assured predictability. The Committee highlighted in this regard that its
approach to examining the meaning of Conventions also prioritized achieving equal treatment for States and uniformity in
practical application. This emphasis was essential to maintaining principles of legality, which encouraged governments to
accept its views on the application of a Convention and, in this manner, promoted a level of certainty needed for the
proper functioning of the ILO system. Third, the Committee stressed that its composition, i.e., independent persons with
distinguished backgrounds in the law and direct experience of the different national legal systems to which Conventions
were applied, helped to ensure a broad acceptance within the ILO community of its views on the meaning of Conventions.
29. The Committee acknowledged the Employers’ concerns expressed by the Employer Vice-Chairperson at the
June 2012 Conference that its observations were “being viewed by the outside world as a form of soft law labour
standards jurisprudence”. However, the Committee noted that the world outside of the ILO was not its designated or
intended audience. Rather, the Committee directed its non-binding opinions and conclusions to governments, social
partners, and the Conference Committee pursuant to its well-settled role in the ILO supervisory structure. While aware
that its guidance was taken seriously in certain specific settings, both by domestic courts and international tribunals, the
Committee considered that this reflected respect for its independent and impartial nature and for the persuasive value of its
non-binding analyses and conclusions. The Committee recalled that those analyses or conclusions could only become
authoritative in any “binding” sense if the international tribunal, or instrument, or the domestic court independently
established them as such.
30. Regarding its working methods and particularly its examination of governments’ reports and comments of
social partners, the Committee recalled that it was relying exclusively on written evidence and that there were no oral
hearings or scope for oral arguments. While the Committee took due note of the well documented and constructive
comments of the social partners, it would welcome receiving more of such comments from the employers to better reflect
their views. The Committee underscored the substantial individual and collective work it carried out in reviewing the
application of Conventions which further benefited from an intensive exchange of views from a diversity of legal, social
and cultural backgrounds. Finally, the Committee recalled that its mandate must by necessity be understood within the
framework of the ILO Constitution which firmly anchors the aims and objectives of the Organization as being the
elimination of injustice, hardship and privation and the fostering of social justice as the means for ensuring universal and
lasting peace.
31. On the matter of the right to strike, the Committee of Experts welcomed the frank discussion of issues that
enabled it to address directly a number of points. In the first instance, there appeared to remain the challenge as to whether
there was a right to strike at all under Convention No. 87. The Committee indicated that it would take into account the
arguments raised by the Employers, although the Committee considered that it had already addressed these arguments in
detail in its 2012 General Survey. The Committee recognized that the Employer Vice-Chairperson appeared to make a
distinction between interpretive application of the Convention and what the Employers felt was making policy, and gave
particular examples of such policy extension. The Committee indicated, however, that once it had decided in 1959 that the
Convention included the right to strike, the Committee was faced with the need to determine what the acceptable
restrictions were, rather than leaving it as an absolute right. The Committee did this on a case-by-case basis over the years,
looking at a country’s law and practice, bearing in mind the information provided to it, and taking into account national
circumstances, while ensuring equal treatment and universal application. In order to make this assessment, the Committee
encouraged, and continues to encourage, all parties, including the employers’ organizations, to make use of article 23(2)
of the Constitution in order to provide relevant information for its reflection. In so far as the Committee’s reliance on the
GENERAL REPORT
12
decisions of the Committee on Freedom of Association was concerned, the Committee recalled that it made its own
decisions. It takes into account the decisions of the Committee on Freedom of Association but does not justify its
observations on the basis of those decisions. Moreover, the Committee recalled several examples of complaints or
comments submitted by international and national employers’ organizations to the Committee on Freedom of Association
and the CEACR in which the employers’ organizations requested both supervisory bodies to make statements regarding
the need to set limits to the exercise of the right to strike when, in their opinion, the legislative texts contained
objectionable provisions.
32. The Committee further emphasized that, contrary to the social partners who often defend conflicting interests,
and therefore had to negotiate, it did not defend interests and, although there may be differences between the experts when
examining the application of Conventions, they did not negotiate between themselves when preparing their comments.
The experts sought legal truth, completely objectively and impartially.
The Committee’s views regarding
its mandate
33. The Committee is aware that, as a result of the informal tripartite consultation in September 2012, the tripartite
constituencies have requested that the Office prepare an information document on the mandate of the Committee of
Experts for the 317th Session (March 2013) of the Governing Body. Following its meeting with the Vice-Chairpersons of
the Committee on the Application of Standards, the Committee of Experts also has an increased understanding of the
concerns expressed by the Employers and of the positions taken by the Workers with regard to its mandate. These
concerns and positions were ably presented by the two Vice-Chairpersons at the meeting of the Committee on 1 December
2012. The Committee has decided to put forward the following considerations in the spirit of assisting the ILO
constituents in their understanding of the Committee’s work. The Committee wishes to draw attention to four principal
factors.
(a) Logically integral to application. The terms of reference of the Committee of Experts call for it to examine a range
of reports and information in order to monitor the application of Conventions and Recommendations. In fulfilling
this responsibility, the Committee must bring to the attention of the Conference Committee on the Application of
Standards any national laws or practices not in conformity with the Conventions, including the severity of certain
situations. This logically and inevitably requires an assessment, which in turn involves a degree of interpretation of
both the national legislation and the text of the Convention.
Further, in conformity with longstanding working methods, the Committee of Experts has identified over
3,000 cases of progress (noting with satisfaction) since 1964, which again logically requires an interpretive
judgment that a government’s change in law or practice has given fuller effect to a ratified Convention as it has been
construed by the Committee.
(b) Equal treatment and uniformity assure predictability in application. The Committee’s approach to examining the
meaning of Conventions stresses due regard for achieving equality of treatment for States and uniformity in practical
application. This emphasis is essential to maintaining principles of legality, which encourage governments to accept
the Committee of Experts’ views on application of a Convention. In this manner, the Committee can promote a level
of certainty needed for the proper functioning of the ILO system.
(c) Composition. The Committee of Experts’ views on the meaning of Conventions are broadly accepted because the
Committee is composed of independent persons who have distinguished backgrounds in the law and direct
experience of the different national legal systems for which they must evaluate the application of the Conventions.
The Committee’s independence is importantly a function of its members’ occupations, principally as judges from
national and international courts and as professors of labour law and human rights law. This independence is also
attributable to the means by which members are selected. They are not selected by governments, employers, or
workers, but rather by the Governing Body upon recommendation of the Director-General. The Committee’s
combination of independence, experience, and expertise continues to be a significant further source of legitimacy
within the ILO community.
(d) Consequences. Governments rely on the valid and generally recognized nature of the Committee of Experts’
observations, direct requests, and General Surveys to help structure their conduct in law and practice. If governments
were to view the Committee’s positions as somehow discounted or of less certain value, some would feel freer to
ignore its requests or invitations to comply. This would inevitably undermine orderly monitoring and predictable
application of the standards – the precise result that the Committee of Experts mandate was established and then
extended in order to prevent.
In addition, the Conference Committee, the Committee on Freedom of Association, and the Governing Body also
rely on the Committee of Experts framework of opinions about the meaning of the provisions of the Conventions in
the course of the applications process. Without this independent role, the supervisory system would lose a vital
element of impartiality and objectivity, an element that has been central to the monitoring system for 85 years.
Document No. 238
ILC, 107th Session, 2018, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, General Report, para. 17
ILC.107/III(A)
International Labour Conference, 107th Session, 2018
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22, 23 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part A)
General Report
and observations concerning particular countries
International Labour Office, Geneva
GENERAL REPORT
10
contemplated to give more visibility to these cases in the report. Finally, with regard to the well-known position of her
group on the right to strike, she asked whether the Committee had had the opportunity to reflect further on this issue and
how it was handling this question this year.
17. The Committee of Experts indicated that it had taken due note of the discussions which had taken place in the
framework of the Standards Initiative on ways to strengthen the supervisory system. The Committee informed the Vice-
Chairpersons of the decisions adopted on the basis of the work of the subcommittee on working methods, notably the
decision to pay closer attention to certain cases of serious failure to report and thereby enhance their visibility, both
generally and in particular to the Conference Committee. Also, the Committee decided to draw inspiration from the
criteria used for requesting early reports with a view to broadening the very strict criteria for breaking the cycle of review
when receiving comments from workers’ and employers’ organizations under article 23, paragraph 2, of the Constitution.
The experts also discussed the innovations introduced by the Maritime Labour Convention, 2006, as amended
(MLC, 2006) which was the product of the consolidation, updating and revision of 37 Conventions and
31 Recommendations, and allowed, along with its innovative reporting form, for a coherent and ongoing supervision of its
application. The MLC, 2006 was a comprehensive, holistic and innovative instrument which had reached an extraordinary
level of acceptance through its rapid ratification by a high number of member States. The same approach had been
followed for the adoption of the Work in Fishing Convention, 2007 (No. 188) and its reporting form. The experts also
emphasized the importance of technical Conventions which accounted for most international labour standards. Beyond the
threshold of fundamental and governance Conventions, the technical Conventions covered a wide range of issues and
represented an important part of the work of the Committee which dedicated a large part of its time and attention to these
instruments. Since 2012, one of the tools used for the examination of some of these Conventions, was to produce
consolidated comments on issues raised under a number of Conventions ratified by the same country in certain thematic
areas. This enhanced the coherence of comments and the visibility of the issues raised without losing sight of the specific
obligations imposed by each of the Conventions considered. In certain cases, this approach allowed for the identification
of additional essential issues and their inclusion in observations. The purpose was to increase the impact of the
Committee’s comments so that follow-up at country level could be as targeted and constructive as possible. With regard to
deferred files, the experts assured the Vice-Chairpersons that the Committee always completed the examination of all files
presented to it by the secretariat. However, a number of reports had to be deferred each year. Among the reasons for this
were the late submission of reports after the due date of 1 September, which seriously disturbed the functioning of the
system, and the increasing number of comments from employers’ and workers’ organizations, which was a welcome
development, but also contributed to a significant increase in the information to be considered in relation to the fulfilment
of the obligations under the Conventions by member States. Finally, with regard to the right to strike, the experts indicated
to the Employer Vice-Chairperson that they had reviewed carefully her statement at the Conference Committee and
emphasized three points. First, the Committee of Experts examined under Convention No. 87, a number of recurrent
themes including violations of civil liberties, denial of employers’ and workers’ right to establish and join organizations of
their own choosing, and the right of these organizations to freely organize their activities and formulate their programmes
without interference from the State. The right to strike was often being examined as a sub-issue of the first topic
(violations of civil liberties) and the third topic (organization of activities without interference). The experts therefore
examined a wide range of important questions under Convention No. 87 and not primarily the right to strike. Second, the
experts paid due attention to the reports received from member States which often contained information on the way the
right to strike was being regulated at national level, along with numerous comments from employers’ and workers’
organizations on this point. Third, while Article 9 of Convention No. 87 left the extent of the guarantees of the Convention
for the armed forces and police to be determined by national laws and regulations, the other provisions were not assigned
to the exclusive control of national laws and regulations and therefore the Committee had a duty to review the way in
which the Convention was applied across ratifying member States.
18. Information on the follow-up given by the Committee to the conclusions of the Conference Committee at its
106th Session (2017) is provided in paragraph 43 of this General Report. 4
Mandate
19. The Committee of Experts on the Application of Conventions and Recommendations is an independent
body established by the International Labour Conference and its members are appointed by the ILO Governing
Body. It is composed of legal experts charged with examining the application of ILO Conventions and
Recommendations by ILO member States. The Committee of Experts undertakes an impartial and technical
analysis of how the Conventions are applied in law and practice by member States, while cognizant of different
national realities and legal systems. In doing so, it must determine the legal scope, content and meaning of the
provisions of the Conventions. Its opinions and recommendations are non-binding, being intended to guide the
actions of national authorities. They derive their persuasive value from the legitimacy and rationality of the
Committee’s work based on its impartiality, experience and expertise. The Committee’s technical role and moral
authority is well recognized, particularly as it has been engaged in its supervisory task for more than 90 years, by
4 Moreover, updated information on the follow-up given by the secretariat to the conclusions of the Conference Committee can be
found as of 1 April 2018, on the official website of the Conference Committee.
Document No. 239
ILC, 108th Session, 2019, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, General Report, paras 28-29
ILC.108/III(A)
International Labour Conference, 108th Session, 2019
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22, 23 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part A)
General Report
and observations concerning particular countries
International Labour Office, Geneva
General Report
GENERAL REPORT
11
thanks to the supervisory body comments linking ratified Conventions to constantly changing national circumstances, and
through the integration of these recommendations and comments in numerous decisions reached by national judicial
bodies. The Committee of Experts’ comments would not have produced the same results if they were not enhanced by the
political impact of discussion at the Conference Committee in a tripartite context. An important condition for maintaining
the impact of the Experts’ comments was the coherence between the two bodies, based on their complementary mandates
and the cooperation they had built over time. The meeting with the two Vice-Chairpersons of the Conference Committee
had become over time a privileged moment of dialogue and cooperation with the invaluable support of the secretariat. The
latter did not detract in any way from each body’s autonomy over its working methods and the personal commitment that
the members of each supervisory body shared for international labour standards. The contribution of the Office was
essential to maintaining a permanent collaboration between the two Committees as well as the other ILO supervisory
bodies. This triumvirate between the two Committees and the Office should be developed even further within the
framework of each body’s respective mandates.
25. The Standards Initiative, aimed at a useful and healthy tripartite discussion on the future of the supervisory
system, had encouraged both supervisory bodies to further improve the way in which they discharged their responsibilities
in order to increase their impact. The Committee of Experts sought over the years to deliver a rigorous, consistent and
impartial assessment of compliance with ratified Conventions, constantly introducing gradual improvements to produce
more user-friendly, precise and concise comments. This was necessary not only in order to give clear guidance to
governments but also to facilitate follow-up action and technical assistance by the Office. The need to be consistent over
time meant that the Committee’s wording should be carefully refined and simplified in an ongoing delicate endeavour.
The subcommittee on the working methods of the Committee of Experts had been established since 2001 and had held its
18th meeting this year. The subcommittee had introduced many improvements over the years and this year again, it had
taken important decisions reproduced in paragraphs 8–11 of this General Report, paying due attention to the requests
made by the Governing Body in the context of the Standards Initiative.
26. Conscious of the synergies between the two bodies, the Committee of Experts had been referring to the
conclusions reached by the Conference Committee in its comments. It had also introduced urgent appeals and planned to
extend this practice even further to address serious lack of cooperation in reporting in synergy with the Conference
Committee. The Committee of Experts placed special emphasis on the Conference Committee’s conclusions, carefully
reviewing their follow-up in its comments, and was pleased to note the dynamic discussion that had occurred during the
last session of the Conference Committee based on the consolidated comments it had made on Haiti, Republic of Moldova
and Ukraine.
27. The Committee attached great importance to the clarity of the criteria for making a distinction between
observations and direct requests, in order to ensure the visibility, transparency and coherence of the Committee’s work
and legal certainty over time in light of the Committee’s evolving membership and practices. This distinction was the
outcome of a long gestation initiated in 1957. The criteria involved careful consideration of both timing and substance.
Even though the criteria might appear clear at first sight, their application sometimes called for a delicate balancing. The
Committee needed some room for reasoned discretion in this area, with a view to maintaining dialogue with governments
and facilitating effective progress in the application of ratified Conventions. This having been said, the Committee was
willing to give due consideration to the suggestions made by the two Vice-Chairpersons in future discussions on this issue.
28. Finally, the Committee appreciated the opportunity to exchange views with regard to Convention No. 87 and
the right to strike and also the use made in the Committee’s comments of conclusions and recommendations reached by
the Committee on Freedom of Association. The latter issue had been raised by the Employer Vice-Chairperson at the last
session of the Conference Committee in May–June 2018. The position of the Committee of Experts on the right to strike
had been set forth in numerous exchanges with the Vice-Chairpersons since 2013. The Experts appreciated that these
parties had different views on the issue. At the same time, the two Committees were in agreement on the recurrent themes
raised in the Committee’s comments in relation to freedom of association. These concerned in the first place the right to
be free from violence and threats to civil liberties; second, the exclusion of certain categories of workers from the right to
organize under the Convention; and third, the autonomy of workers’ and employers’ organizations explicitly protected
under the Convention in Articles 2, 3, 4, 5 and 6. One aspect of this autonomy, the right of workers’ and employers’
organizations to organize their activities and formulate their programmes, involved taking industrial action in appropriate
circumstances. The right to strike was not the main focus of examination by the Committee though it was an important
one. Based on the constitutional obligation to report on the way ratified Conventions were applied in law and practice, the
Committee’s comments were intended to guide the actions of national authorities with respect to this right. The
Committee’s guidance also relied on reports from governments and comments from the social partners, reflecting
application of the right under varied national circumstances. The effort to understand the diversity and complexity of
country settings was made when the Experts examined the application of all Conventions and not just Convention No. 87,
and was certainly something the Experts took very seriously when examining issues around the right to strike.
29. Regarding the comments from the Employer Vice-Chairperson on references made to CFA cases, the
Committee fully recognized the different mandates and working methods of the two Committees and did not routinely
refer to CFA conclusions and recommendations. When the Committee did so, it was basically for two reasons: either
because the CFA had referred the legislative aspects of a case to the Committee of Experts, or for other intersectional
GENERAL REPORT
12
reasons, for example when the CFA had addressed similar issues in the recent past as was sometimes indicated by the
government or the social partners themselves. The CFA’s assessment of the practical application of Conventions on
freedom of association sometimes informed the Committee of Experts as to how the Convention was applied, especially as
the CFA based its examination on complaints. The Committee’s approach reinforced the integration of the supervisory
mechanisms, while doing so through a suitably tailored set of circumstances as part of the independence and discretion
that the Committee was expected to exercise.
30. Concerning considerations of diversity in placing double footnotes, the most important criterion for the Experts
was the urgency of the issue but they were conscious of the need to maintain all types of balance. The Experts were aware
of the challenges faced by the two Vice-Chairpersons in maintaining a balance among cases discussed at the Conference
Committee in particular in relation to regional diversity. The concerns expressed by both Vice-Chairpersons were taken
very seriously by the Experts and would be kept in mind moving forward.
31. Information on the follow-up given by the Committee to the conclusions of the Conference Committee at its
107th Session (2018) is provided in paragraph 73 of this General Report. 3
Mandate
32. The Committee of Experts on the Application of Conventions and Recommendations is an independent
body established by the International Labour Conference and its members are appointed by the ILO Governing
Body. It is composed of legal experts charged with examining the application of ILO Conventions and
Recommendations by ILO member States. The Committee of Experts undertakes an impartial and technical
analysis of how the Conventions are applied in law and practice by member States, while cognizant of different
national realities and legal systems. In doing so, it must determine the legal scope, content and meaning of the
provisions of the Conventions. Its opinions and recommendations are non-binding, being intended to guide the
actions of national authorities. They derive their persuasive value from the legitimacy and rationality of the
Committee’s work based on its impartiality, experience and expertise. The Committee’s technical role and moral
authority is well recognized, particularly as it has been engaged in its supervisory task for more than 90 years, by
virtue of its composition, independence and its working methods built on continuing dialogue with governments
taking into account information provided by employers’ and workers’ organizations. This has been reflected in the
incorporation of the Committee’s opinions and recommendations in national legislation, international instruments
and court decisions.
Looking into the future on the occasion
of the ILO’s Centenary
33. A century of any institution’s existence invites both celebration and reflection. As the ILO embarks on its
second century, the Committee of Experts wishes to offer some reflections on its own past and possible future role. The
context in 2019 is different from 1919, but no less challenging today: a persistent disjunction between economic and
social policies, an erosion of multilateralism, persistence of poverty and growing inequality within and between member
States, a mixed picture when it comes to human rights, and the fragility posed by climate change and conflict. Moreover,
the speed at which the combined forces of technology, demographic and climate change, globalization and migration are
transforming our world of work presents additional challenges to the national and global institutions embodying the social
contract of our time and the peace and security supported by the social contract.
34. Prior to any reflection, the Committee has to be mindful of the mandate originally bestowed on it by the
International Labour Conference in 1926: to examine the reports of governments required under article 22 of the ILO
Constitution and report on its findings to the Conference.
35. In 1926, the Organization operated on a vision of harmonizing national labour legislation among 56 member
States at relatively comparable levels of development. Its initial purview was to supervise the application of some 20
Conventions. In 1969, that substantive remit had expanded to 121 Members and over 250 Conventions. Meanwhile,
decolonization in particular had not only increased the Organization’s membership but had started to alter the couching of
international labour standards and their supervision. The introduction of flexibility clauses in Conventions and, more
generally, of standards less geared towards predominantly legislative compliance and more towards the sound orientation
of policies and institutions needed to realize social justice in newly independent States increasingly inspired the
Committee to invite member States to rely on the gradually expanding technical cooperation activities of the Organization.
36. The Committee modified aspects of its role and working methods to adapt to the times. In 1946, the ILO
Constitution was amended to include an obligation in member States to supply at the request of the Governing Body
reports on Conventions they have not ratified. The General Surveys to which these reports give rise allow the Committee
to examine the difficulties reported by governments in applying standards; to clarify the scope of these standards; and
occasionally indicate means of overcoming obstacles to their application. Today, the General Surveys, besides providing
3 Moreover, updated information on the follow-up given by the secretariat to the conclusions of the Conference Committee can be
found as of 1 April 2019, on the official website of the Conference Committee.
Document No. 240
ILC, 58th Session, 1973, Report of the Committee on
the Application of Standards, pp. 556-557 (Mauritania)
INTERNATIONAL LABOUR
CONFERENCE
FIFTY-EIGHTH SESSION
GENEY A, 1973
RECORD OF PROCEEDINGS
INTERNATIONAL LABOUR OFFICE
GENEVA, 1973
um1ni1111
27
APPENDICES
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Conventions and Recommendations
CONTENTS
Page
FIRST PART: General Report 536
SECOND PART : Application of the Conventions on Freedom of Association and on the Right to Organise and
Collective Bargaining 541
Annex A : Situation in Certain Countries Which Have Not Ratified Either or Both of Conventions Nos. 87 and 98 546
Annex B : Situation in Certain Countries Which Have Ratified Either or Both of Conventions Nos. 87 and 98 548
THIRD PART: Appendices 566
Appendix I. Observations and Information concerning Reports on Ratified Conventions (Article 22 of
the Constitution) 566
A. General Observations and Information concerning Certain Countries 566
B. Observations and Information on the Application of Conventions 569
C. Detailed Reports on Ratified Conventions 583
D. Statistical Table of Annual Reports on Ratified Conventions (Article 22 of the Constitution) . . . 585
E. Reports Received by 21 June 1973 on Two Conventions concerning Freedom of Association and the
Right to Organise and Collective Bargaining (Article 19 of the Constitution) 585
Appendix II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (Articles 22 and 35 of the Constitution) 586
A. General Observations 586
B. Observations and Information on the Application of Conventions 587
C. Receipt of Detailed Reports on Ratified Conventions (Non-Metropolitan Territories) as at 21 June 1973 588
Appendix III. Submission to the Competent Authorities of the Conventions and Recommendations
Adopted by the International Labour Conference (Article 19 of the Constitution) 589
Observations and Information 589
Index by Countries to Observations and Information Contained in the Report 596
— 556 —
and the confidence accorded to standards and their procedures. It
was difficult to understand that the Government insisted on maintaining
the restrictions applicable to non-registered organisations
while insisting that in practice these organisations enjoyed the
same rights as registered organisations. The strike was certainly
the ultimate weapon, but a good system of industrial relations
should lead to its not being used, on condition that strikes
nevertheless remained possible. A gesture of amnesty seemed to
be desirable. The problem was serious and the Government
should be pressed to take the appropriate measures. It seemed
moreover desirable to await the conclusions of the Committee
on Freedom of Association.
The Worker member of Pakistan stated that the question had
great importance and bore upon the interpretation of Convention
No. 87. If this interpretation were left to the discretion of
governments, the basic principles of this Convention would not
be respected. Convention No. 87 was very clear. The Fact-
Finding and Conciliation Commission was of the opinion that
the legislation should be amended; but difficulties still persisted.
The Employers' members expressed the hope that the national
tripartite committee would contribute to finding a solution and
that the legislation would be brought into conformity with the
Convention.
The representative of the Secretary-General pointed out that
the questions submitted to the Committee had been raised for a
number of years and had been the subject of several procedures.
Twelve complaints relating to Japan were at present before the
Committee on Freedom of Association. One had been the
subject of a report, on another there had been interim conclusions,
and the others were still being examined. There existed,
moreover, at the national level an Advisory Committee for the
Public Services which was charged with the examination of the
questions and was due to present a report next September.
The Government representative stated that it was sure that all
efforts would be made with a view to finding a solution in the
public sector on the basis of the report of this Advisory Committee.
The Committee noted that there were complex problems in the
application of Conventions Nos. 87 and 98 in Japan, but that
discussions on these matters were going on. The Committee
urged that efforts be made to ensure that these discussions would
lead to positive conclusions in the course of the next few months.
Liberia (ratification: 1962). A Government representative
made the following statement :
Liberian legislation recognised freedom of association and the
right to collective bargaining. A draft Labour Code taking into
account ILO Conventions had been submitted to the present
session of the National Legislature. This fact had been noted by
the Committee of Experts in its observation concerning Convention
No. 98. As regards the question of public servants, the
provisions of the new Code limiting its scope would be in conformity
with Article 6 of Convention No. 98. As regards protection
against anti-union discrimination referred to in Article 1
of this Convention the draft Labour Code reinforced the right
of workers to join trade unions and the right to collective
bargaining. It would seem appropriate to wait for the adoption
of the Labour Code before re-examining the situation.
The Workers' members made the following statement:
In Liberia there were important restrictions on trade union
rights and it was therefore even more regrettable that the
Government's last report had not referred to the comments of
the Committee of Experts. Agricultural workers and industrial
workers could not be organised in the same union or even come
together in one trade union federation. This restriction had been
imposed in 1966 to counter attempts which were then being
made to organise plantation workers. It had the effect of preventing
the development of trade unions among agricultural workers.
The Government's action in impeding the formation of trade
unions among agricultural workers was particularly serious,
given the importance of the plantation sector in Liberia, the
large number of workers employed there, and the great room
for improvement in their conditions as evidenced by the fact
that Liberia had denounced the Plantations Convention instead
of making good the shortcomings in its application noted by the
Committee of Experts. Workers in the public sector did not have
the right to organise. This restriction affected not only the civil
servants, but even industrial employees of public enterprises.
Finally, even where workers enjoyed the right to create trade
unions, the public authorities intervened in the electoral processes
within the unions. All these were serious violations of the
Convention which should be put right without delay.
The Workers' member of Liberia made the following statement:
Liberia was going through a period of transition with a new
President and a new programme which gave rise to some hope.
Convention No. 87 had been ratified in 1962. From the moment
that an effort had been made to organise the Firestone plantation
workers, trade unionists had been arrested. Firestone and
other plantations had succeeded in getting the Government to
adopt laws against the organisation of plantation workers.
In 1966 and in 1967, the ICFTU and the International Federation
of Plantation Workers and the Liberian Congress of Industrial
Organisations had filed simultaneous complaints with the ILO
concerning restrictions on freedom of association in the plantations.
Having regard to the slowness of the procedure, the trade
unions had made an effort to negotiate with the Government.
In March 1972 they had addressed a petition to the President
requesting the modification of the legislation and the application
of Convention No. 87. They hoped that the President would do
something. He had created a Commission composed of the
Ministers of Labour and of Justice. The trade unions had been
able to discuss with the Minister of Justice but they had not
yet received a reply to their petition. It was to be hoped that
changes would be made in the legislation, in particular to
permit plantation workers to join trade unions. They were not
capable of organising alone; they needed well-formed organisations.
The Workers' member of Sierra Leone stated that Liberia
was not in a period of transition, and that it should be mentioned
in the special list under criterion 7 to prompt the Government
to take urgent measures to solve the existing problems.
In reply to questions put by the Employers' members and the
Workers' member of the United States, the Government representative
made the following statement :
The new Labour Code took into consideration all the discrepancies
pointed out by the Committee of Experts concerning
Conventions Nos. 87 and 98 and it contained provisions conforming
to these Conventions, as the Committee would be able
to see next year when it is adopted. In addition, it had been
prepared with the assistance of an ILO expert. The text would
be communicated to the ILO after adoption.
The restrictions on the right of employees in the public sector
to join trade union organisations and the supervision by the
public authorities of trade union elections had been eliminated
in the new draft Labour Code.
The Workers' members made the following statement:
In the case of Convention No. 98 the Government had
indicated in its report that the legislation would be brought into
conformity with the Convention. It had indicated today that
the draft Labour Code would also bring the legislation into
conformity with Convention No. 87. Despite the seriousness of
the violation of these two Conventions, and having regard to
the positive elements referred to by the Government representative
and to the present situation in Liberia the Committee could
give the Government a period of one year to put its legislation
in order and could request the Committee of Experts to examine
the question very attentively. The case should be included in the
special list next year if there was not a remarkable improvement.
The Committee requested that the Committee of Experts
examine the situation with very great care and expressed the
hope that national legislation would be brought into full conformity
with Conventions Nos. 87 and 98 by next year.
Madagascar (ratification: 1960). The Government communicated
the following information:
The restructuring of the Labour Code is under way, and will
ensure that section 3 no longer includes the phrase " any form
of political activity whatsoever is prohibited to trade unions "
and that the words " economic, industrial, commercial and
agricultural interests " in section 17 are replaced by " common
interests ". This is what was recommended by the National
Harmonisation Committee, which concluded that section 3 of
the Labour Code should be replaced by the wording " the
trade unions have as their exclusive object the study and defence
of their occupational interests ".
In addition, a Government representative stated that the
amendments to the Labour Code would completely safeguard
the freedom of trade unions, without at the same time preventing
the administration from bringing before the courts trade union
members who might be tempted to violate the laws on freedom of
the press, freedom of assembly, freedom of association, as well
as the penal laws.
The Workers' members and the Employers' members, regretting
that the Government had supplied its reply at such a late
date, stated that communication of replies by governments at
the very last moment was not satisfactory since it weakened the
supervisory procedures.
The Committee had taken note of the information supplied
by the Government which would be examined by the Committee
of Experts.
Mauritania (ratification: 1961). A Government representative
made the following statement:
In 1969 direct contacts had been requested for eight Conventions.
Following these contacts, the Government had undertaken
progressively to bring the legislation into conformity with
these Conventions. The Committee of Experts had noted with
satisfaction regulations and legislation adopted in 1972 as
regards Conventions Nos. 3, 18, 33, 52, 81, 90 and 94. There
remained only Convention No. 87 with regard to which the
Government had sent a Bill to the ILO by letter dated 11 May
1973, indicating that if it were judged satisfactory by the ILO
and the Committee of Experts it would be submitted to the
— 557 —
Parliament with a view to its adoption before the next session
of the Conference.
In 1969 and 1970 certain trade unionists, taking advantage of
internal unrest in the workers' movement, wanted to create trade
unions on an ethnic or linguistic basis, which was judged contrary
to national unity; the Government, in order to put an end to this
tendency which was dangerous for the country, decided to
allow only a single union for each occupation. Unfortunately,
the Government had not explained its reasons to the Committee
of Experts which considered the text to be contrary to the
principle of freedom of association, whereas in reality it was
the trade unionists who had falsified the spirit of the Convention.
These difficulties had now disappeared, the trade unionists
having understood the necessity for trade union unity on an
occupational basis. This was the reason for which a new text
had been prepared designed to respect Convention No. 87
while at the same time protecting the country against acts liable
to harm national unity. If it was not considered satisfactory by
the Committee of Experts direct contacts could again be requested
with the ILO.
The Committee was informed that, in a letter sent on 11 May
and received in the ILO on 25 May 1973 the Government set
s out the reasons which had led to the Act of 1970. It indicated
that it intended to meet its obligations and it asked for the
assistance of the ILO in regard to the legislative amendments
which it proposed to sections 1, 2 and 9 of Book III of the
Labour Code. It was for the Committee of Experts to give an
opinion. The ILO had sent a provisional reply on 29 May 1973
noting the despatch of the draft text and indicating that it still
seemed to include certain divergences with the Convention in
spite of the improvements which it contained. The ILO remained
at the disposal of the representative of Mauritania.
The Workers' members made the following statement:
It was appropriate to take note of the efforts made by the
Government to bring its legislation into conformity with the
Convention and the fact that it wished to have the views both of
the ILO and the Committee of Experts. The Government had
referred to the reasons which led to the adoption of the 1970 Act.
However, the reasons were not relevant to the question whether
there was conformity with a Convention or not. It was necessary
that workers remain free to create the trade unions of their choice.
The requirement that trade union leaders should belong to the
occupation represented was incompatible with Article 3 of the
Convention. The fact that the Minister of Labour could at his
discretion decide to prohibit a strike while submitting a collective
dispute to arbitration was contrary to Articles 3 and 8 of the
Convention.
The Employers' members associated themselves with the comments
of the Workers' members. It was essential that the legislation
be brought into conformity with the Convention.
The Government representative stated that the proposed Bill
was designed to eliminate the various divergences indicated by
the Committee of Experts. The Government desired to fulfil its
obligations but wished that account be taken of the difficulties
of countries where the trade union tradition was not as old as
in the industrialised countries.
The Committee took note of the intention expressed by the
Government to conform fully to the Convention, as well as the
request for an opinion that it had addressed to the ILO.
Mexico (ratification: 1950). The Government communicated
the following information:
The most recent comments of the Committee of Experts concerning
the regulations governing the right to organise of public
servants related to three fundamental points:
1. Article 2 of the Convention relating to the right of workers
to establish organisations of their own choosing. The right to
organise for the defence of their interests is enjoyed not only by
workers in the private sector but also by those in the service of
the State. By its very nature the activity of the State cannot be
interrupted or interfered with because the public authorities, as
those responsible for the community, have to discharge important
and urgent duties. It is, therefore, obvious that it must be ensured
that state activity suffers the fewest possible interruptions, some
•> of which are caused in practice by the organised struggle of the
workers to obtain improved conditions of employment and higher
rewards for themselves and their families. In accordance with
the historical evolution of Mexican labour law and the revolutionary
antecedents of the Government, the legislature considers
the aspirations of the public servants legitimate, but has sought
to reconcile them with the responsibility of the public authorities.
The formula which so far has appeared the most suitable
consists in fully guaranteeing the right to organise of public
servants, but recognising the majority workers' association, so
that the public authorities may know with whom they have to
deal in case of dispute and so that their attention shall not be
distracted by constant labour disputes which, however important,
are of secondary importance beside the running of the State.
This does not mean that minority associations cannot be formed
or, even less, that prior authorisation is required for them, but
simply that they must wait until they achieve the largest membership
before being recognised by the State. This is confirmed by
the wording of section 68 of the Federal Act governing workers
in the service of the State, under which, when more than one
group of workers claims to represent the employees, recognition
shall be granted by the Conciliation and Arbitration Tribunal to
the majority group.
The Government repeats its affirmation that the Federal Act
governing workers in the service of the State in no way restricts
the right of public servants to form the organisations which they
consider appropriate for the defence of their interests. It should
be recalled that this Act regulates Part B of the Federal Political
Constitution, and thus cannot be inconsistent with its letter or
spirit; in interpreting its terms therefore, in their application to
the right to organise, the general rule contained in division X
of the above-mentioned Part B must be respected, and this
provides that " workers shall have the right to organise for the
defence of their common interests ". It must thus be understood
that state employees can form as many organisations as they
wish for defence of their interests, but that for the abovementioned
reasons only the majority union will receive recognition
through legal registration. This does not imply that other
groups of workers cannot exist alongside the registered union, as
is proved by the wording of section 68 referred to above, and of
section 73 which provides for the cancellation of registration
when another association is registered which represents the
majority. Further, the latter provision adds that when two
organisations claim to represent the majority a recount must be
taken to resolve the situation.
The recognition of the majority organisation is logically
necessary, since it would be impossible for an employer, whether
state or private, to enter into agreements with a plurality of
organisations within the same undertaking. This atomisation of
labour relations would lead to chaos. The criterion followed by
the ILO Constitution itself for the appointment of non-Government
delegates to the Conference is to provide that they should
be chosen in agreement with the most representative organisations.
The Government wishes to clarify certain other aspects of the
Committee of Experts' observation.
(a) When section 77 of the Federal Act governing workers in
the service of the State provides in subsection IV that trade
unions are responsible for " protecting and representing
their members in dealing with the authorities and before the
Federal Conciliation and Arbitration Tribunal when so
requested ", this does not confer these obligations on them
exclusively but spells out that they have this obligation so
that the basic function which they are to fulfil shall be established
and they will not be able to avoid their responsibility.
In further confirmation, it will be observed that this provision
of section 77 imposes the obligation to protect and
represent their members on trade unions " when so requested
", so that if there is no request the members of the
trade union can defend themselves or be represented by
somebody distinct from the trade union. It will also be
appreciated that the obligation of trade unions is limited to
protecting and representing " their members ", so that
persons who are not members cannot call upon the union to
represent and protect them, and must therefore have resort
to somebody distinct from the trade union.
(b) Section 67 of the Act governing workers in the service of the
State is merely designed to define the basic function of a
trade union, which is characterised as an association of
workers who work in the same establishment, formed to
study, improve and defend their common interests.
(c) Article 10 of the Convention defines the term " organisation
" to mean " any organisation of workers or employers
for furthering and defending the interests of workers or
employers ". What doubt can there be that the minority
organisations which may be formed in the same establishment
have such an objective? Article 10 is designed to
distinguish organisations which are truly occupational from
others designed to serve other purposes, cultural, educational,
sporting, artistic, etc., which would thus not come
within the scope of the Convention.
2. Prohibition of the re-election of trade union officers. The
Government repeats that the prohibition of the re-election of
trade union officers contained in section 75 of the Federal Act
governing workers in the service of the State is not contrary to
Article 3 of the Convention. A careful reading of the Mexican
Act, section by section, reveals that no provision authorises or
even tolerates the imposition of representatives on the workers
or postulates an electoral system favourable to certain groups.
On the contrary, the spirit which inspires it is that of avoiding the
creation of cliques who would perpetuate their leadership of the
trade unions to the detriment of mobility in the trade union
movement.
The Committee should take into account that political and
administrative experience in Mexico have amply demonstrated
the damage caused by prolonged tenure of office. The Mexican
revolution has established as a fundamental principle, which is
affirmed in every official document, the prohibition of re-election.
Document No. 241
ILC, 64th Session, 1978, Report of the Committee on the
Application of Standards, pp. 29/28-29/29 (Ethiopia)
) International Labour Conference ^
**j Provisional Record
Sixty-fourth Session, Geneva, 1978
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Conventions and Recommendations
CONTENTS
FIRST PART : General Report '. 2
SECOND PART: Appendices 14
APPENDIX I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) ' 14
A. General Observations and Information concerning Certain Countries 14
B. Observations and Information on the Application of Conventions 17
C. Table of Detailed Reports on Ratified Conventions 40
D. Statistical Table of Reports on Ratified Conventions as at 23 June 1978 (article 22 of the Constitution) 41
APPENDIX II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 42
A. General Observations and Information concerning Certain Territories 42
B. Observations and Information on the Application of Conventions 42
C. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan Territories . . 42
APPENDIX III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted
by the International Labour Conference (article 19 of the Constitution) 43
APPENDIX IV. Supplementary information 45
Reports received by 23 June 1978 relating to the Employment (Women with Family Responsibilities)
Recommendation, 1965 (No. 123) (article 19 of the Constitution) 45
Index by Countries to Observations and Information Contained in the Report 46
had held elections for their officers in complete independence
and without external interference. In addition, the Governing
Body had decided to consider as closed cases Nos. 685, 781, 806
and 814, as well as the complaint procedure concerning the
application of Convention No. 87, since the information supplied
was considered satisfactory. Finally, because of the current
process of normalisation of the situation, which should terminate
with the elections of 9 July 1978, the Government had decided
that the draft Labour Code would be transmitted to the Congress
which emerged from the elections. The Congress would begin
its work on 6 August 1978. In the meantime, the present labour
legislation would remain in force.
The Workers' members recalled that last year's discussion
had not been encouraging and that the Committee had included
a special paragraph in its report concerning its concern over the
application by Bolivia of Convention No. 87. This year, following
a number of events, and perhaps thanks to the action taken by
this Committee, there had been satisfactory changes which the
Committee should point out. Like the Committee of Experts
the Committee on Freedom of Association and the Governing
Body, the Workers' members noted with satisfaction the general
amnesty which had been declared and the holding of trade
union elections with a view to re-establishing a normal trade
union situation. There had been real progress, the proof of
which was that the Governing Body had decided to terminate
its examination of the complaints against Bolivia. The Workers'
members Hoped that the new Labour Code which was being
prepared, and which had to be submitted to the Congress, would
guarantee to the workers the exercise of all trade union rights,
and in particular the right to freely constitute organisations
óf their choice and their independent representation in negotiations
at the national sectoral or undertaking levels. They also
hoped that next year the situation could be considered completely
settled both in legislation and in practice. The new code would
have to be submitted to the Committee of Experts for examination.
The Employers' members considered that this case was very
encouraging. They welcomed the decision to declare a general
amnesty, the holding of trade union elections and the drawing
up of a draft Labour Code concerning which consultations
were now being held. These measures went in the right direction.
They hoped that by next year the Labour Code could be adopted
and that it would be in conformity with the Convention.
The Committee noted with satisfaction the progress made in
restructuring the legal order and thanked the Government
representative for the information he had supplied.
Central African Empire (ratification: 1960). The Government
indicated that a draft text was in preparation, for the amendment
of provisions of sections 6 and 10 of the Labour Code so as
to put them into conformity with the Convention. Information
on the matter will be communicated in due course.
The Workers' members stated that they were aware that the
application of Convention No. 87 sometimes posed problems.
However, they had to note that there had been no reply to the
comments of the Committee of Experts for many years.
See also under Convention No. 29.
Dominican Republic (ratification: 1956). A Government representative
made the following statement :
His delegation had never intended to avoid the Committee's
questions and there was no lack of good will, since despite his
commitments he was present. He had only become aware of the
accusations made when reading " ILO Information ", volume 14,
No. 2, 1978. Only on 15 June 1978 had he received a copy of a
letter dated 14 June 1978 and addressed to the Secretary of State
of Foreign Affairs, to which was joined a document containing
a number of accusations made for the most part before the visit
of ILO representatives to his country. As early as 16 June 1978
he had sent a letter to a member of the Governing Body of the
ILO stressing that he did not consider the situation in his country
so grave as was being intimated. Although he was not in a
position to comment on these accusations, he stressed that he
had most serious doubts that his Government would tolerate
such violations of the labour legislation by national or foreign
companies, while Dr. Joaquin Balaguer, President of the Dominican
Republic, had always been a defender of social justice and
he had been praised by the international community for his
contribution to the démocratisation of his country. The Government
representative had that very morning has a meeting with
the Director-General of the ILO, and it would appear that a
number of communications had not reached their destinations.
He added that his country's delegation to the Conference consisted
of only one person, and it was difficult to be in two places
at once and to satisfy the needs of all the Committees.
The Workers' members regretted that this case could not
really be dealt with and stated that next year it should be put at
the beginning of the agenda. They expressed their concern over
the fact that comments on this Convention had been made by
the Committee of Experts for several years, and that serious
violations of trade union rights concerning several categories of
workers as well as violations of freedom of association were
before the Committee on Freedom of Association. That Committee
had expressed regret over the negative attitude of the
Government, which had not consented to the sending of a
mission to the country. The Governing Body had given wide
publicity to its conclusions concerning the facts alleged; arrests,
dismissals, the disappearance of trade unionists, violations of
the right to strike, the occupation of trade union premises,
freedom of association of agricultural workers, etc. They insisted
that the Government take very seriously the concern which had
been expressed on many occasions and hoped that progress
could be noted next year and that a mission would be able to
visit the country.
The Employers' members agreed with the Workers' members
that a mission should be able to examine the situation and that
the case should be examined early next year.
The Committee decided that the above statements would be
reflected in its report.
Ethiopia (ratification: 1962). A Government representative
made the following statement:
It was necessary to consider the fundamental changes transforming
the gains of the Ethiopian Revolution to adapt to the
situation of a country entering a new era. In four years there
had been consolidation of a new State, land nationalisation and
all that went with collective ownership, and the organisation of
peasants in democratic associations at the same time as urban
associations were being constituted, the nationalisation of the
means of production, and the establishment of progressive
labour legislation.
The Committee of Experts had considered that trade union
unity could not be voluntary. This meant the assertion of a
division between the aspirations of the workers and the Labour
Proclamation, and also it assumed the unions had a passive role
in the implementation of the Proclamation. It was necessary
to take account of the historic development of trade unions
and the aspirations of the workers in order to evaluate trade
union unity: such unity, which strengthens the workers, is a
result of the fact that the old Confederation of Workers existing
up to 1975 had been reformed, and the workers were now
organised on revolutionary principles. To interpret the Proclamation
as having been imposed by the Government would be
to ignore the wishes of the workers themselves.
The progress made ought to be recognised by the ILO; in
addition, a study was to be undertaken to examine and if necessary
amend the Labour Proclamation, and the trade unions would
participate in the study by making their recommendations.
As regards management personnel and domestic servants,
it should be stressed that the Labour Proclamation was not the
only text governing the right of association. Many associations
had been created, urban, peasant and other associations. The
fact that the Proclamation did not deal with certain workers
did not mean they were not protected, for instance by access to,
conciliation and arbitration procedures. The possibility for
public servants to organise was being studied.
As regards the right to strike, the Labour Proclamation
did not prohibit it but laid down procedures which did not
prevent workers from exercising their rights. As for the international
affiliation of trade unions, it was unlimited. The aims
of the All Ethiopia Trade Union were expressed in the statute
lodged with the Ministry.
Finally, the dissolution of the Employers' Federation of
Ethiopia did not result from government act, but from the
nationalisation of the large enterprises from 1975, following
which the secretariat of the Federation requested new principles
for the organisation from the Government. Managers in the
public and private sectors could now exchange information,
and the change in structure was manifested in the Chamber
of Commerce.
There had been an ILO mission to Ethiopia in March 1977,
and its observations of the facts indicated that the conditions
of work appeared to be adapted to realities in the country.
If should be stressed that despite the state of war existing there
had been no recourse to special legislation, a state of emergency
or a state of siege—which indicated a positive attitude on the
part of the Government. The possibility of direct contacts
should be considered.
The Workers' members stated that whatever the economic
and social system in question and whether or not it was being
transformed, observance of the ILO Constitution and ratified
Conventions was still essential. If the direct contacts which
appeared to be desired enabled a solution, they should be used.
It was certainly necessary to show understanding of the present
29/28
Situation, but excuses should not be sought in past or present
circumstances for disregarding obligations. The Labour Proclamation
contained several points which were not in harmony
with Convention No. 87. Since the Government had indicated
its intention to re-examine the Proclamation, the Workers'
members agreed to show some patience, especially since the
present acts of the Government were compatible with observance
of the Convention. Besides this, the Government must reply to
the comments of the Committee of Experts, which had not been
done this year.
The Employers' members stated that they understood the
importance of the problems raised by the changes being undergone
in the country, and the exceptional situation, and the need
to take them into consideration in this case as in others. There
were still however unanswered questions, in particular: did
domestic servants have a right to appeal to a conciliation and
arbitration service? Had the right to strike been demonstrated
by a factual strike since 1974? Was the right for employers to
create organisations within the Chamber of Commerce an
obligation or a free choice?
A Government representative indicated that domestic servants
had the right to appeal to a conciliation and arbitration service in
either the urban or peasant associations. As for the right to
strike, this was not prohibited, as recognised by the Committee
of Experts. However, there were procedures which had to be
followed before strikes were called. Finally, employers' associations
were not obliged to join the Chamber of Commerce but
could join if they so wished.
The Employers' members considered that, apart from the
direct contacts request, account should be taken of the observations
of the Committee of Experts, and they stated they awaited
positive results.
The Government member of the USSR indicated that this
was a case demanding a cautious attitude. The Committee
traditionally gave the greatest attention to problems of priorities
in countries, and there was here an exceptional situation, which
had not yet come to an end, as the result of external aggression.
It was in this light that the comments of the Committee of Experts
should be considered; moreover, the explanations which
had just been given showed a constructive attitude on the part
of the Government with regard to the ILO.
As for the substance, the question of the voluntary nature of
trade union unity in Ethiopia was viewed in different lights by
the Committee of Experts and the country in question. The
country considered that trade union unity was the result of
the historic initiative of the trade unions and the Committee
of Experts should take due account of this information and look
at the matter differently. As for the right to strike, the Committee
of Experts duly noted that the provisions in question
do not impose an " absolute " prohibition on strikes, although
in fact they do not impose any prohibition, simply submitting
them to a procedure. This was not a phenomenon particular to
Ethiopia but could be found elsewhere, in countries where there
is neither an exceptional situation nor infringement of the provisions
of the Convention. Further, it was doubtful whether ILO
standards dealt with the right to strike, and if they did not it
was in any event impossible for the Committee of Experts to
find divergence between the Ethiopian legislation and Convention
No. 87.
The Government representative had mentioned the proposed
work for improving the legislation and this was proof of the
voluntary co-operation which was desired, and this was a
fundamental point transcending divergencies of opinion. It
should therefore be agreed that the Ethiopian Government's
position should meet with understanding in this Committee.
The Government member of the United Kingdom stated that
he recognised the reasons for thanking the Ethiopian representative
for his explanations, but the absence of the report
requested by the Committee of Experts for this year was to be
regretted, as it made it impossible for the Experts to give a
considered opinion of the situation. He hoped a report would
be supplied in time to enable questions like those of trade union
unity to be dealt with properly, as this was a fundamental
question often raised, as well as the right to strike.which,
although not expressly laid down in Convention No. 87, was
implied by the provision there for the right freely to organise
activities, a freedom which legislation such as the Labour
Proclamation would limit. He considered that the Government
representative's statement that the Employers' Federation had
not been dissolved but had simply disappeared by virtue of the
socialist revolution illustrated well the point of view expressed
by the Employers that, in an economic and social system such
as Ethiopia's, employers' rights can no longer exist, demonstrating
thus the incompatibility of the system with the tripartite
structure of the ILO.
The Government member of Bulgaria stressed the historic
changes and the steps taken in the interest of the workers in
the form of a continuing effort to adapt the legislation. This
corresponded with what is requested in point 6 of the Declaration
of Principles of the World Employment Conference. It
should be noted that employers could subscribe to the Chamber
of Commerce and that domestic and public servants could
organise. Review of the Labour Proclamation could contribute
to these improvements; it also showed goodwill in this respect.
As for technical co-operation, the ILO was making an important
contribution to the development of Ethiopia. The statements
of the Government representative should be noted.
The Employers' member of the USSR stated, on behalf of
the employers of socialist countries, that he was satisfied with
the explanations of the Ethiopian Government and their positive
tenor. He stressed that although the situation in the country
had not yet been normalised, the Government in the process
of undertaking social change had enered into active co-operation
with the ILO. He supported proposals that the discussion of
this case should simply be reflecetd in the Appendix of the
Committee's report.
The Workers' members proposed a paragraph to express in
a positive manner the view expressed on all sides, following
last year's discussion and taking into consideration the exceptional
situation in the country, despite the absence of a reply
to the Committee of Experts, but taking into consideration the
explanations given here, recognising that the Labour Proclamation
should be re-examined and perhaps amended and that
direct contacts might be initiated.
The Government representative indicated that reports on
ratified Conventions would be sent as soon as possible and would
take into account the observations made this year.
The Employers' members expressed their agreement to the
proposal for a special paragraph. They asked that if there were
direct contacts it should be determined why the employers in
nationalised industries had resigned from their national organisation
and requested that the special paragraph should express
their concern at the dissolution of the Employers' Federation
of Ethiopia.
The Committee noted the information supplied by the Government.
It welcomed the Government's intention, despite the
difficult situation in the country, to examine carefully the
comments of the Committee of Experts in the course of the
contemplated revision of existing legislation, and that it was
proposing to have recourse to the direct contacts procedure as
regards this Convention. It hoped progress would be made and
that full information would be communicated for examination
next year by the Committee of Experts and the Conference
Committee. The Committee decided to include a special paragraph
in its report to this effect.
Guatemala (ratification: 1952). A Government representative
regretted that the draft law which had been prepared during
the direct contacts carried out in 1975 had not yet been examined
by Congress. Nevertheless, a change of government would
take place in July 1978 and the Congress of the Republic would
contemplate the measures to be taken to bring national legislation
into conformity with the Convention.
The Workers' members recalled that Convention No. 87
contained fundamental standards and that it was particularly
important that the Government take measures in this area.
The Employers' members expressed the hope that Guatemala
would soon ensure the implementation of the Convention.
The Committee expressed the hope that the necessary
measures would quickly be taken to give effect to the Convention.
Honduras (ratification: 1956). A Government representative
recalled the statement made last year to the present Committee
by the Minister of Labour regarding the implementation of
changes in the labour code. The adoption of these changes,
which had originally been scheduled for November 1977, had
been delayed somewhat. Direct contacts had been carried out
last November to finalise a text which would bring the legislation
into conformity with the Convention. This text had been examined
in detail and a circular had been sent to trade union federations
for their comments. The Ministry of Labour had thereafter
prepared a draft which took into account the comments of these
federations. The Council of Ministers had submitted this draft
to the Supreme Court of Justice, which had examined it and
made its comments in this regard. The Head of State had now
to proceed to the adoption of the draft in the Council of Ministers.
Tt was possible that the draft would be enacted and published
in the Official Journal very shortly. In any case, the
Government delegation would inform the Government of the
discussions which had taken place in the present Committee.
29/29
Document No. 242
ILC, 65th Session, 1979, Report of the Committee on the
Application of Standards, pp. 36/35-36/36 (Ireland)
) International Labour Conference j%w
^_J Provisional Record
Sixty-fifth Session, Geneva, 1979
Third Item on the Agenda : Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Conventions and Recommendations
CONTENTS
FIRST PART : General Report .'. 2
ANNEX: Report of the Working Party of the Committee on the Application of Conventions and
Recommendations 15
SECOND PART: Appendices 17
APPENDIX I : Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 17
A. General Observations and Information concerning Certain Countries 17
B. Observations and Information on the Application of Conventions 22
C. Table of Detailed Reports on Ratified Conventions 52
D. Statistical Table of Reports on Ratified Conventions as at 22 June 1979 (article 22 of the
Constitution) 53
APPENDIX II: Observations and Information concerning the Application of Conventions in Non-
Metropolitan Territories (articles 22 and 35 of the Constitution) 54
A. General Observations and Information concerning Certain Territories 54
B. Observations and Information on the Application of Conventions . . . 54
C. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan Territories
, • 55
APPENDIX III: Submission to the Competent Authorities of the Conventions and Recommendations
Adopted by the International Labour Conference (article 19 of the Constitution) 56
APPENDIX IV: Supplementary information 58
Reports received by 22 June 1979 relating to the Forced Labour Convention, 1930 (No. 29) and
Abolition of Forced Labour Convention, 1957 (No. 105) (article 19 of the Constitution) 58
Index by Countries to Observations and Information Contained in the Report 59
conditions prevailing in Ethiopia and particularly the unprecedented
exercise of freedom of association, in the country.
With this in view, the Government would like to express its wish
to the Committee of Experts once again not to be too legalistic on
certain points. It is still confident that the committee will try to
create an atmosphere of mutual trust and understanding on this
issue. Further explanation will be given as early as possible
concerning some points raised by the committee for which
additional information was requested.
The Committee was informed that a communication had been
received from Ethiopia requesting a direct contacts mission in
January 1980 to examine the application of Convention No. 87.
The Workers' members therefore agreed not to discuss the case
this year. However, if this meant that direct contacts would only
take place after the revision of the Labour Proclamation of 1975, it
would make no sense for them to take place. When it was decided
not to discuss a particular case because direct contacts had been
requested, this meant that the request should have been made '
before the discussion took place.
Greece (ratification: 1962). The Government communicated
the following information:
The Greek Government, considering that the collection of trade
union dues under collective agreements should be the sole source
of revenue for occupational associations as well as the sole method
for them to gain economic independence, provided in article 22(2)
of the 1975 Constitution in force that "general working conditions
shall be determined by law, supplemented by collective labour
agreements contracted through free negotiations and, in case of
the failure of such, by rules stipulated by arbitration".
In addition, in conformity with the interpretive provision
concerning article 22 of the Constitution, among the general
working conditions is the determination of persons who are
charged with the collection and the restitution of the dues provided
for in the statutes of trade union organisations for their members.
Consequently, the Constitution in force has removed the obstacles
that existed before 1975 concerning the collection of trade union
dues through the check-off system established by collective
agreements. In the future, trade union organisations will be free to
conclude collective agreements providing for, inter alia, collection
of trade union dues by the check-off system. It should be pointed
out that this system has already been applied to important sectors
of the workers, such as bank employees, seamen, railwaymen,
employees of the Public Electricity Company, and of the Telecommunications
undertaking, etc.
As has been already stated, the system of collection of trade
union dues through the checkvoff could also be instituted by
arbitration awards, which further assures the possibility of regulating
the collection of dues from their members even where
employers refuse to conclude a collective agreement. Thus, from
the point of view of labour legislation, trade union organisations
are completely free to regulate the collection of dues from their
members. Consequently, there is no question of the Government's
intervening, which could be seen as interference in the internal
affairs of the organisations, which is prohibited by the Constitution.
Nevertheless, as the Minister of Labour, Mr. Lascaris, stated
before Parliament on 16 August 1977, the Government of Greece
is ready to propose a Bill aimed at regulating the question of
collection of trade union dues and at doing away with the present
provisional system of financing as soon as such a request is made
by workers' organisations.
As no request has been made up till now, the present system
continues to function provisionally, in the sense that it will be done
away with as soon as the workers' organisations so request.
It must be pointed out that the rate of financing of trade union
organisations by ODEPES is proportional to the number of
members in these organisations who have fulfilled their financial
obligations. Besides, this system of financing in no way hinders the
check-off system which already applies in several organisations
under collective agreements.
Moreover, an organisation's application of the system of financing
by ODEPES ought to be provided for in its own statutes and
approved by the general assembly of its members.
Guatemala (ratification: 1952). A Government representative
recalled that at this session of the Conference the Minister of
Labour had stated that on 1 July of this year the Congress of the
Republic would receive the draft of a new labour code which
would ensure freedom of association. The Government would
ensure that these rights were guaranteed and would supply further
information on the improvements introduced.
The Workers' members regretted that this Convention was not
fully applied. Amendment to the Labour Code had been prepared
during the direct contacts in 1975, but no progress had been made.
They hoped that next year the Government would report real
progress.
The Employers' members hoped that this case would come up
again next year. It was a matter of some concern that since the
Convention was ratified in 1952 the Government had not been
able to implement it. They hoped that the assurances given would
be carried out.
The Committee hoped that this highly important Convention
could be fully implemented as soon as possible.
Honduras (ratification : 1956). The Government communicated
the following information :
In view of the Committee of Experts' repeated observations,
Decree No. 760 of 2.5 May 1979 has been issued (copy attached),
amending various provisions of the Labour Code which were not
in conformity with the letter and spirit of Convention No. 87.
Ireland (ratification : 1955). A Government representative com-
1 plimented the Committee of Experts on its monitoring of the
compliance of countries with obligations they had freely accepted.
In its report the Government had stated that it did not accept
that it might be in breach of Articles 3,8 and 10 of the Convention
by reason of the effect of the Trade Dispute Act, 1906. The only
substantive rights which these Articles provided were those
mentioned in Article 3 and among those rights the only right to
which the 1906 Act could be relevant was the right of workers'
organisations to "organise their administration and activities".
The only ground advanced by the 1906 Act was a limitation on the
means of action open to the organisations "to defend the interests
of their members". Although the Government did not accept that
it was violating this Convention, it was considering amending this
Act. It was not true, as stated in the observation, that work on
amending the legislation was under way, but the views of the
competent government department had been received and amendment
was being considered.
The Workers' members welcomed the fact that consultations
had already been held, and they hoped that the Government
would not wait long before following up these consultations. They
were concerned that no progress had yet been made and hoped the
Government would make proposals as soon as possible.
The Workers' member of Ireland was disturbed that the
Government had called into question the interpretation of this
Convention by the Committee of Experts. It was important to
recognise that the problem arose from the fact that some employees
could be sued for damages if they took strike action, since they
were not covered by the 1906 Act, and picketing was illegal for
them. The Government had stated that Articles 3, 8 and 10 did not
provide for the right to strike, but the Committee of Experts had
often said that although there was no mention in the Convention of
the right to strike, this right was implied for all employees except
for those in the public service. They did not accept that the
Committee of Experts was wrong in its interpretation.
He was also concerned at the Government's statement that it
was considering whether to amend the Act though it was not yet
proposing any amendments. In 1965 the Government had already
accepted that this legislation needed to be changed, and in 1966
there had been a Bill containing amendments but this had lapsed in
1969. It was also accepted in 1975 and twice in 1977 that changes
were necessary. It was disturbing that the Government was again
considering whether amendments were necessary, when it had so
often been accepted that they were necessary.
Employers' members stated that the statement by the Government
representative provided no further information than what
was noted in the report of the Committee of Experts. They could
not comment on whether the 1906 Act was appropriate to the
trade union situation in the country. They noted with concern that
in examining whether the legislation should be amended the
Government representative had stated that comments had been
received from government departments, but no mention had been
made of consultations on workers' and employers' organisations.
The Government representative stated that the normal procedure
in enacting legislation was to canvass all government departments
concerned in order to observe the principle of collective
responsibility. Labour legislation would never be enacted without
consulting the employers' and workers' organisations.
This question had long been a problem in Ireland since it
involved an extension of the power to picket. Workers who were
not regarded as working in trade and industry were not covered by
the Trade Disputes Act, which gave protection against the
consequence of trade union action. In Ireland pickets had great
power in practice. The legal extension of the power to picket to
further categories of workers had to be very carefully considered.
Some years previously the Irish Congress of Trade. Unions made
an attempt to limit the powers of pickets, but the practice
continued to be abused especially in unofficial action. The
Committee should not get the impression that persons not in trade
and industry were deprived of the power to strike or picket. For 13
36/35
weeks there had been a strike by the postal services, which were
not covered by the Act.
He repeated that no draft legislation was yet being prepared, but
was hopeful over the situation.
The Workers' members considered it a good sign that there was
participation by workers' and employers' organisations in improving
the situation, and hoped that progress would soon be made.
The Committee noted that tripartite discussions were continuing
in the country, and hoped that these would lead to a satisfactory
conclusion and would make it unnecessary for the Committee of
Experts to make further comments.
Japan (ratification: 1965). The Government has communicated
the following information :
1. Permissible grounds for cancellation of the registration of an
employees' organisation
These grounds are provided for in section 108-3, paragraph 6, of
the National Public Service Law and section 53, paragraph 6, of
the Local Public Service Law, and, where any of the requirements
as stated below have been met, there exist such grounds : (i) when
a registered employees' organisation has ceased to meet the
requirements for an "employees' organisation", such as the case
where such an organisation has ceased to aim at maintaining and
improving the conditions of work of its members; (ii) when a
registered employees' organisation has ceased to meet the requirements
for registration, such as the case where the adoption or
revision of its constitution, election of officers and other similarly
important actions have actually been decided without following
democratic procedures provided for by law ; (iii) when, in case a
registered employees' organisation has made any change in its
constitution or in the particulars set forth in the application for
registration, it has failed to submit a report to this effect.
In this connection, the following points should be added: (i)
cautious procedures including hearings to be conducted in advance
in the case of cancellation of the registration are provided for by
law ; (ii) cancellation of the registration does not mean to deny the
existence and function of the employees' organisation, but simply
means that the employees' organisation can no longer be afforded
the facilities specified by laws and regulations as an effect of
registration ; (iii) for the period of 30 years from the start of the
registration system till now, there are no cases where the registration
has been cancelled by the National Personnel Authority.
2. Interpretation given in practice to the expression "persons
making important administrative decisions or who participate
in making such decisions"
With regard to national public employees, in the case of
employees in the ministry or agency proper, the expression
"employees making important administrative decisions" means
the administrative vice-minister, bureau director-generals, etc.,
who make decisions on important administrative measures, etc., in
each ministry or agency, and the expression "employees in a
managerial position who participate in making important administrative
decisions" means bureau deputy director-generals, division
directors, etc., who are in a managerial position and participate in
making decisions on such important administrative measures, etc.
With regard to local public employees, division chiefs, section
chiefs, etc., in each prefecture, city, town and village, belong to
these categories of employees in a similar manner to the case of
national public employees.
3. Disciplinary sanctions
Under the pay system of Japan according to which the pay of
public employees is raised on the basis of a proper assessment of
their job performance, it is unavoidable that those who were
subjected to disciplinary sanctions for the reason of their having
participated in a strike or for any other reasons may suffer from
some disadvantages in a pay raise. However, in the case of public
employees in the non-operational sector such as educational public
personnel, if those who were disciplined are assessed as showing
excellent job performance in subsequent years, the pay raise is
naturally made.
4. Procedures for guaranteeing conditions of service of employees
With regard to public employees in the non-operational sector
whose conditions of service are fixed by laws and regulations
enacted by the Diet or the assembly of the local public body, there
is a system under which the conditions of service of those
employees are revised so as to bring them into accord with general
conditions of society, by recommendation at an appropriate time
of the National Personnel Authority or the Personnel Commission
which are independent and impartial organs (such recommendation
concerning the national public employees is submitted from
the National Personnel Authority to the Diet and the Cabinet and
one concerning the local public employees from the Personnel
Commission of each local public body to the assembly and the
head of the local public body concerned). For such a purpose, the
National Personnel Authority and the Personnel Commission are
always endeavouring to grasp the trend of working conditions in
the private undertakings and so forth and at the same time receive
frequently, from both parties of labour and management, their
genuine demand and free opinions and takes their recommendation,
taking into account various circumstances.
With regard to public employees in the operational sector, there
is a system of conciliation, mediation, arbitration, etc., by the
(tripartite) Koroi (the Public Corporation and National Enterprise
Labour Relations Commission), etc., which are fair third-party
organs.
Restrictions on the right to strike of the above categories of
public employees are counterbalanced by these two types of
compensatory measures which function effectively ; this fact has
been confirmed in a judgement rendered by the Supreme Court of
Japan.
The Government further communicated the following information:
As regards the question of the right to drganise of the fire
defence personnel, the Government has made clear its basic
position that it will study carefully this question in a longer-term
perspective. In this connection, the Government envisages that, as
a concrete step, it will continue studying this question at the Inter-
Ministerial Conference on the Problems of Public Employees,
hearing fully the opinions of the parties concerned.
Kuwait (ratification: 1961). The Government communicated
the following information:
The Government will take account of the observations of the
Committee of Experts and will spare no effort considering the
amendment of the labour legislation with a view to meeting most
of the Committee's comments on this Convention.
Liberia (ratification: 1962). A Government representative
recalled that last year her Government had undertaken to work on
a new Labour Code and that there would be a Tripartite
Conference. Such a conference had been held. The draft code was
being revised taking into account questions raised by the Tripartite
Conference and legal experts, including the question relating to
the application of Conventions Nos. 87 and 98. As for Convention
No. 98 the Government had provided a list of union representation
elections which had taken place in the past 12 months. Under
the Liberian Constitution, ratified Conventions became law
immediately without the need for implementing legislation, so that
civil servants enjoyed the rights provided for in Conventions
Nos. 87 and 98. For example, nurses, doctors and teachers in
public service had organised in associations, which had bargained
with the Government about salaries and other conditions.
The Workers' member of Liberia was not clear as to the nature
of the collective bergaining of civil servants referred to by the
Government representative. During the Tripartite Conference in
Liberia the trade union had prepared papers on labour laws and
industrial relations and had pointed out discrepancies in Liberian
law with the Conventions in questions. The Tripartite Conference
had considered, in particular, that the compulsory separation of
agricultural and industrial workers should be reconsidered. The
conclusions of the Tripartite Conference were now before the
authorities. If taken into account in the Labour Code they would
lead to conformity with these Conventions. He asked that the
personal attention of the President of Liberia be drawn to the need
to deal with this matter, and hoped that this would be the last
occasion on which the case would require discussion by this
Committee.
Another Government representative, in response to a question
from the Employer' members, stated that a ratified Convention
automatically became law in Liberia except where there was other
contrary legislation ; as no legislation prohibited civil servants from
organising and collective bargaining, Convention No. 98 was part
of Liberian law.
The Employers' members were glad to note that the Tripartite
Conference had made certain recommendations. These questions
had been outstanding for many years and they hoped the necessary
legislation would soon be enacted.
The Workers' members hoped that the Tripartite Conference
would produce tangible results, particularly as regards the main
points concerning joint organisations of workers in agriculture and
industry, workers in the public sector, interference of the
authorities in trade union elections and protection against antiunion
discrimination. They hoped that there would be changes in
legislation and practice, and wondered whether the direct contact
procedure could be of further assistance. The situation had
remained unchanged for many years, although promises had been
made and reports had not been sent. Their group would consider
whether criterion 7 of the special list ought to be applied, but ifi the
meantime proposed the inclusion in the Committee's report of a
special paragraph concerning the application by Liberia of all the
36/36
Document No. 243
ILC, 68th Session, 1982, Report of the Committee on the
Application of Standards, pp. 31/45-31/46 (Uruguay)
) International Labour Conference % \
_r~J Provisional Record
Sixty-eighth Session, Geneva, 1982
1
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Conventions and Recommendations
CONTENTS
PART ONE: General Report 2
PART TWO: Observations and Information concerning Particular Countries 13
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) .'. 13
A. General Observations and Information concerning Certain Countries 13
B. Observations and Information on the Application of Conventions 16
C. Table of Detailed Reports on Ratified Conventions 66
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 67
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 68
A. General Observations and Information concerning Certain Territories 68
B. Observations and Information on the Application of Conventions 68
C. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 68
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 69
IV. Information on the Situation in Certain Countries concerning Tripartite Consultation . . . ? 72
Reports received by 18 June 1982 relating to the Tripartite Consultation Convention (No. 144) and
Recommendation (No. 152), 1976 72
Index by Countries to Observations and Information Contained in the Report 73
31/1
The Government member of Bulgaria supported the opinion
expressed by the Government representative of Poland.
The Government member of the USSR considered that there
had been a frank and constructive exchange of views in the
Committee. The conclusions which had been expressed by the
Chairman were not the logical conclusions from the discussion. It
was clear that the information provided by Poland had been frank,
rich and original. The Committee had noted a series of measures
which had been taken as well as the Government's policy of
improving the situation, but still wanted to include in the report
the conclusion that there had been a serious violation of the
Convention. The Committee wants to include a special paragraph
as a punishment for violation of the Convention despite a positive
approach. The way the decision was taken was not a positive
conclusion to a positive discussion.
The Government member of the Byelorussian SSR supported
the statement by the Government member of the USSR.
The Government member of Ethiopia stated that her delegation
disagreed with including a special paragraph in the report, as the
Committee had heard of the progress achieved from the Government
representatives and from the report of the representative of
the Director-General. This should be reflected in the report and
the Committee» should continue to have a positive approach.
The Government member of the German Democratic Republic
stated, on behalf of his delegation and that of Czechoslovakia, that
he had reservations on the conclusions drawn with respect to the
special paragraph. Conclusions of this kind did not correctly reflect
the discussion which had taken place.
The Government members of Kuwait, Uganda and the Libyan
Arab Jamahiriya also expressed their reservations about including
a special paragraph in the report.
The Government members of Mongolia, Democratic Yemen,
the Syrian Arab Republic and the Ukrainian SSR and the
Workers' member of the German Democratic Republic, speaking
also on behalf of the Workers' member of Czechoslovakia,
Bulgaria, Mongolia and Hungary, stated that they could not accept
the Committee's decision to have a special paragraph.
The Government member of Nigeria stated that he was not sure
that if there was a vote on the issue in this Committee now, it
would not differ from the result of the vote in the Governing Body.
He would abstain. The Committee should not go to extremes
immediately, but should wait to see what happened before the next
Conference.
The Government member of Canada stated that his Govenment
fully agreed with the decision taken by the majority of the
Committee, which reflected faithfully what had been said. It
showed a positive attitude towards the Government of Poland,
which had provided detailed information on the situation with the
greatest frankness and honesty. The decision was a good one, and
he hoped that the Polish authorities would put it into effect and
continue their attitude of co-operation with the ILO.
A Government representative of Poland, the Vice-Minister for
Labour and Social Affairs, stated that the inclusion of a special
paragraph in the report could be considered somewhat offensive to
the Government. It could be interpreted as a personal defeat for
all those who held dear the revival of the trade union movement in
Poland. Taking account of the number of speakers who had
disagreed with the decision to include a special paragraph in the
report, he asked that the Committee consider the possibility of
voting on the matter.
The spokesman for the Workers' members stated that a decision
had already been taken by the Committee, and only those who had
wished to abstain or to state that they disagreed had taken the
floor later.
The CHAIRMAN considered that there had been a decision
taken by a majority and that the speakers who took the floor after
the decision had simply wished to express their reservations or
disagreement. No one had asked for a vote immediately after the
decision was announced.
The Government member of the USSR stated that he did not
feel a decision had been taken. The Chairman had suggested a
form of words for consideration, and immediately speakers began
' expressing their reservations. The Government of Poland had the
right to ask for a vote.
The Government members of Czechoslovakia, the German
Democratic Republic and Nigeria, as well as the Workers' member
of the USSR, stated that they did not agree that a decision had
been taken while the spokesmen for the Workers' and Employers'
members, the Government members of Canada and the Netherlands
and the Workers' member of Austria stated that they
thought a decision had been taken. ,
The sitting was adjourned briefly, after which the CHAIRMAN
stated that he had consulted with the Officers of the Committee,
and that they were in unanimous agreement that a decision had
been taken in conformity with the usual procedure of the
Committee. As a personal proposal, he suggested, however, that as
an exception to the normal procedure the text of the conclusions
that would appear as a special paragraph in the report would be
submitted to the Committee the following morning. This text
should not be subject to correction, and if after examining it the
Committee still wished to have a vote it could do so the same
afternoon.
The spokesmen for the Workers' and Employers' members
supported this proposal, emphasising that the subject would not be
reopened for discussion and that any vote which might take place
should be only on the question of whether the text submitted to the
Committee should take the form of a special paragraph.
The Government member of Canada also agreed with the
proposal. He stated that this procedure should not constitute a
precedent for the Committee, and that it should be clearly
understood that any vote be simply on the inclusion of a special
paragraph and that the debate should not be reopened.
The proposal made by the CHAIRMAN was adopted.
At its next sitting, the Committee proceeded to a vote on
whether the draft conclusions proposed by the Chairman should be
included in the report as a special paragraph.
The results of the vote were 68,981 - 30,838, with 5,824
abstentions. The Committee thus decided to include a special
paragraph in its report on the application of Convention No. 87 by
Poland.
Uruguay (ratification: 1954). A Government representative
made the following statement :
He welcomed the opportunity given by the Committee to discuss
developments in the application of the Convention. Uruguay had
had difficulties in fully applying the Convention but his Government
had never ceased to demonstrate its intention of normalising
trade union activity by legislation which would take due account of
the international obligations of Uruguay by observing the right of
employers and workers and the community. Thus the law on
occupational associations had been adopted. The most representative
employers and workers organisations had been consulted at
the preparatory stage. His country was in permanent contact with
the ILO and especially the Freedom of Association Committee,
which had correctly expressed satisfaction, together with the
Governing Body, with the progress made by the adoption of the
new law. Several direct contacts missions had taken place and had
largely contributed to the solution of the problems: thus the
Director-General in his report to the Conference mentioned the
case of Uruguay with satisfaction noting that a law considerably
improving previous provisions had been adopted following direct
contacts. Paragraph 37 of the report of the Committee of Experts
also noted with satisfaction Uruguay's adoption of this law
following direct contacts, thus improving considerably the previous
provisions. Also paragraph 92 of the report listed cases of
"satisfaction", i.e. progress made in legislation or practice following
observations of the Committee of Experts as including
Uruguay as regards the present Convention. Having adopted the
law in question his Government had made regulations to guarantee
its practical application; the registration system for trade
unions was functioning and the number of requests for registration
was now over one hundred and fifty.
The Workers' members stated that this case placed them in an
uncomfortable position: the report of the Director-General and
the report of the Committee of Experts described this as a case of
progress following direct contacts, but in practice, serious problems
still existed. The new legislation should be welcomed by the
workers, but despite improvements on paper, there were serious
shortcomings as regards freeing imprisoned trade unionists ; and
why were so many trade union leaders still in exile ? Some trade
union organisations in Uruguay considered that the new legislation
and implementing regulations were far too limited; it appeared
that anti-union repression still existed. The law was one thing, its
application was another and the improvement should be practical
too. The Freedom of Association Committee of the Governing
Body in its report expressed the hope that measures would be
taken to apply the Convention fully. While the Workers' members
welcomed the the legislative changes made they remained concerned
as to measures for practical application and hoped that the
consequences of previous restrictions would be removed.
The Employers' members recalled that they had not wished to
include the present case on the list of cases for discussion in the
Committee. There did not appear to be sufficiently precise
information to form an opinion on the new legislation and its
implications, and in any event this would be the role of the
Committee of Experts. In this regard the Committee of Experts
noted gaps in the legislation, particularly concerning the question
of eligibility of trade union leaders and the fact that occupational
31/45
associations had no right to represent their members in court.
These were serious shortcomings. The Government had also
indicated that it would regulate the right to strike, and even though
that was not expressly covered by any Convention it was a constant
concern of the Freedom of Association Committee.
The Workers' member of Uruguay fully agreed with the remarks
made by the Workers' and Employers' spokesmen. Trade union
organisations in Uruguay had made observations on the new law
particularly as regards the dispersement of central trade unions in
the industrial sector. The present Convention was only a link in the
chain of Conventions protecting trade union rights which included
Conventions Nos. 98 and 151. He regretted that the implementing
regulations had not been brought into force and that most workers
by far were not unionised. The right to strike came under the
Convention but the draft to regulate strikes was not yet before the
legislature. Without the right to strike, trade unionism could not
operate. There was not yet any official collective bargaining and
his confederation had repeatedly said that it hoped for true
collective bargaining. The Committee should express the hope that
progress would continue to be made, that the right to join a union
would be recognised for public officials and that the right to strike
should be guaranteed.
The Workers' member of Italy recalled that trade union rights
should be observed as an integral part of tripartism. The Uruguay
workers had asked for a national tripartite committee to deal with
questions of standards and ILO relations. The Government had
not replied on this point. Was it because it was almost useless to
have such a committee in a country where there was no freedom of
association?
The Workers' member of Spain stated that the doubts raised had
lead to the inclusion of Uruguay in the list of cases and called for
comment. Although it could be argued that there had been an
improvement in the legislation since the Occupational Associations
Act had abolished the requirement of a statement of political
allegiance for trade union officials, the situation was different
when the Government had since issued Regulations on 12 October
1981, section 39(d) of which provided that no one "who has
occupied a post of responsibility in an organisation declared by law
to be illegal" may be a trade union official. As the National
Labour Convention (CNT) had been declared illegal, this excluded
almost all trade unionists of the possibility of being an official and
deprived workers of the freedom to elect their own representatives.
Institutional Act No. 7 of 27 June 1977 required aU workers
in the public sector to make a declaration of their loyalty to the
representative republican system of government. Since the Government
could repeal or amend the Constitution by " institutional
acts", it was very hard to subscribe to a system of government
when the Constitution or a law enacted by Parliament could be
repealed at any time. Nor had there been any real measures as
regards arbitrary detentions for trade union reasons, as the
resolutions of the Human Rights Committee last April showed,
when it was stated in particular that Alberto Altesor had not had a
fair trial and that the detention of Mario Teti was the subject of
physical attacks and death threats, along with their trade unionists.
The Workers' member of the Netherlands had noted from
reports received from various sources on Latin America that the
situation in Uruguay as regards trade unions was the most difficult.
He was highly surprised that the Committee of Experts had listed
this case as a case of progress in its report. Improvement in
legislation should not be the only yardstick used by the experts to
identify progress. In fact, if legislation improved and practice
remained as bad as it was, the gap between law and practice
widening, one could quite logically argue that in fact the situation
had deteriorated. Although the facts were wanting in the report of
the Committee of Experts on the present case, as the Employers'
spokesman had said, that also applied to the case of Poland which
the Committee had just discussed at length. The Government
should give clear information, figures and statistics and replies to
the questions posed in the Committee. Otherwise the Committee
should note that legislation had improved but that the practice was
consistently bad and that the gap between the two had widened in
the last year.
The Workers' member of Mali recalled that the case of Uruguay
had been examined by the Committee on the request of the
Workers' group. He wondered why the Committee on Freedom of
Association and the Governing Body had not studied it of their
own accord. There were more exiles from Uruguay than any other
country. As for public employees and civil servants, concerning
whom the right to organise is at issue in Uruguay, the situation of
this category of employees with regard to freedom of association
should be examined in all countries. The case of Uruguay, which is
not unique, should not be only a pretext for statements but should
also be the object of measures by the Committee.
The Workers' member of Austria recalled that the case had
been dealt with in 1978 and 1979 and a special paragraph had
even been included on it. A regulation on the application of the
Act on occupational associations had been promulgated in
October 1981, but the Committee of Experts had observed that
neither this law nor its regulation completely covered the question
of application of Convention No. 87. Unless the Government
delegate was able to supply sufficient additional explanations,
Uruguay could certainly not be considered a case of progress.
The Workers' member of the USSR had already pointed out
that the Committee of Experts should not base itself on one-sided
information, in this case coming from the Government. In this
respect this case was a blatant one in so far as the Committee of
Experts had noted some progress from the point of view of
legislation, which, however, camouflaged persistent violations of
trade union rights. He did not know the contents of the Act of
1981 but noted that it had been adopted without consultation with
real representatives of the workers, who were not satisfied with it.
The Act did not provide for the right to strike and did not conform
to Convention No. 87. Over 60,000 people had been arrested in
Uruguay in recent years and trade union leaders, many of them
eminent, had been imprisoned. One of them died in prison in
1981. Sixty-thousand persons had left the country. Flagrant
violation of trade union rights in Uruguay should be condemned.
The Government could not content itself with supplying information;
it should review labour laws in their entirety and restore
trade union rights.
The Government member of the Netherlands noted with
satisfaction the fact that measures had been taken by the Government
and the statement that the right to strike would be regulated
in the near future. Full application of Convention No. 87 was thus
no longer hampered by legislation. She hoped th,at the Government
would not confine itself to legislative measures but would
also implement the legislation.
The Workers' member of Angola stressed the deplorable
situation of the trade unions in Uruguay and pointed out the
inadequate implementation of adopted legislation according to the
report of the Committee of Experts. He wished to believe that
efforts were being made by the Government to settle the situation,
but he wanted to know about prisoners and to receive information
about exiles.
The Workers' member of Liberia endorsed the previous statement.
The Government representative recalled that in the general
discussion the overwhelming majority of the Committee had paid
tribute to the independence, objectivity and impartiality of the
Committee of Experts. His Government naturally shared the
viewpoint of the majority that the work of the Committee of
Experts was a fundamental part of the activities of the ILO. The
comments of the latter should therefore elicit the greatest attention.
Concerning release of detained trade unionists, it was impossible
for the present Committee to analyse individual cases of persons
concerned. Such cases had been brought before the Committee on
Freedom of Association. In this respect his Government had not
changed its position, namely that no one had been arrested in
Uruguay for trade union activities. During the last direct contact
mission in 1981, the representative of the Director-General had
been able to fulfil his intention of interviewing several imprisoned
persons in the absence of witnesses and had studied court
indictments against conspirators. He was thus able to note that
they had not been arrested for trade union activities. In this
connection he referred to paragraphs 50 and following of the
209th Report of the Committee on Freedom of Association (May-
June 1981).
Documents had been mentioned as having been received by the
Workers' group from certain workers concerning cases of repression
of trade unionists. But perhaps the Government should be
informed in detail of the serious accusations before being asked to
reply to them. In addition clarification had been requested by the
Employers' group on the scope of section 12 (b) of Decree
No. 513/981. There was a traditional distinction in labour law
between individual and collective disputes. Collective disputes
were resolved by special machinery or collective bargaining and
not in the courts. If a worker appealed before a court because of an
individual dispute, he was represented free of charge, if he so
wished, by a lawyer of the Ministry of Labour, but in this case the
trade union, as an institution of collective law, could not intervene.
It was therefore impossible for a trade union to appear in court on
behalf of one of its members in order to resolve an individual
dispute.
Concerning the right to organise of public employees, certain
speakers had referred to Convention No. 151, but the latter did
not concern trade union rights of public employees; this was
recognised in Convention No. 87. In addition, Convention No. 151
was not relevant in the present case because it had not been
ratified by Uruguay. In accordance with section 27 of the Act on
Public Servants of 1943, public servants had the right to form trade
unions, and the Chairman of the most representative trade union
31/46
organisation in his country was a public servant. Concerning the
right to strike, he reaffirmed the Government's intention to
regulate in the near future the exercise of this right, which had
been recognised for over forty years in the Constitution. It was
surprising that the Committee of Experts expressed the hope that
this Regulation would contain no provisions in contradiction to
Convention No. 87, because neither the latter nor any other ILO
Convention dealt with the right to strike. The Committee on
Freedom of Association and the Committee of Experts had
certainly drawn up a series of principles on the right to strike, but
only the personal value of the members of these institutions should
command respect. It was the Uruguyan Constitution which would
be applied.
Following the statement of the Workers' member of Uruguay
during discussion of the general survey, he pointed out that his
country, which had not ratified Convention No. 144, nevertheless
attached fundamental importance to tripartism and regularly
consulted occupational organisations on matters relating to the
ILO. It was true that the General Confederation of Workers in
Uruguay had called for a tripartite committee for the ILO, and the
proposal was being thoroughly studied by the Government.
The problem of the hierarchy of legal rules had been highlighted.
Every lawyer would agree that a decree should respect the
law, and the law should respect the Constitution, and a regulation
could not set up provisions which were not contained in the law.
Section 5 of Act No. 15137, drafted after the direct contacts
mission to Uruguay, authorised a regulation to determine the
conditions for trade union leadership. In this respect, the regulation
only developed the mandate contained in the law.
Concerning the request made to the Government to supply
figures to prove that progress was being made in the situation of
trade unions, the Committee had always worked on the basis of the
report of the Committee of Experts. Individual cases were to be
examined by the Committee on Freedom of Association and were
not within the competence of the present Committee. The speaker
referred these to the Committee on Freedom of Association which
was still examining certain cases and had closed others. Several
Workers' members had expressed legitimate concern that progress
in legislation had only been achieved on paper. A law and its
application could diverge but this was true in all countries. It was,
however, a matter of good faith, and the Government's intention
was to apply the law and its regulation in practice, and to take into
account the comments made by the Committee. His Government
had always proved its good faith by replying to comments,
accepting direct contacts and modifying legislation. It was applying
the law in a sufficient, loyal and correct manner.
The Workers' members recognised the Government's regular
contribution to discussion with the ILO and its efforts to improve
the situation. A law and its application would of course diverge,
but this could happen in any country. At all events, this would be
impossible. The Committee of Experts had noted improvements in
legislation but had also expressed the wish for further changes in
the latter. The supervisory machinery included the Committee of
Experts, the Committee on Freedom of Association and the
present Committee, and also had at its disposal direct contacts and
other methods. All these bodies had to collaborate in perfect
harmony. As the Committee of Experts and the Committee on
Freedom of Association had pointed out, there still remained
points to be settled, in spite of the improvements which had been
achieved. The Workers' members recognised these improvements
but wished efforts to be made towards full application of the
Convention and towards achievement of tripartism at the national
level. Without reopening the debate on prisoners, they noted that
as a rule no one was arrested in any country for trade union
activities. The Workers' members would continue to refer to
information from workers' organisations in order to ascertain how
far the Convention was really being applied. Before speaking of a
real case of progress, the Committee should wait until the laws and
their application were in conformity with each other.
The Employers' members thanked the Government representative
for his explanations, although he had not replied to the
question asked by the Committee of Experts concerning provisions
which remained in contradiction to the Convention, and which the
Committee of Experts requested to be brought into line with the
Convention. Certainly, the law and its practice differed in a
number of countries. They did not see why a worker, for example
in a case of dismissal, should be denied the right to call in a union
lawyer to defend him as this was an individual dispute arising out
of industrial relations. The requirement of an interval that must
elapse before re-election to trade union leadership deprived trade
unions of sufficient continuity in their leadership and thus hampered
their activity. They wished the Government delegate to
assure the Committee that the observation of the Committee of
Experts would be carried out, that the Government would
continue the discussion and that the points which had not yet been
settled would be communicated to them. It was not enough to
enact a new law; it had to be applied. They recalled that the
Committee on Freedom of Association would consider the case of
Uruguay again next year.
The Committee took note of the information supplied by the
Government delegate and of the replies provided to questions
which had been asked. It recognised that important progress had
been made at the legislative level but was concerned about certain
aspects relating to practical application of the legislation. It hoped
that those problems of regulation and legislation which still
remained, would be settled as soon as possible, so that the
Committee would be able to note the following year that the
situation, both de jure and de facto, was in full conformity with
Convention No. 87.
USSR (ratification: 1956). The Government representative
made the following statement :
When the Convention was ratified in 1956, the Government had
assumed that the rights enjoyed by the trade unions in the country
were far broader than those provided under this Convention. The
role and importance of the trade unions was very great in the
country. It assumed that as the country continued to develop, the
role of the trade unions in running the society would also expand,
and this forecast had turned out to be accurate. Trade unions
actively participated in all progressive decisions and in everything
which contributed to progress. Their role was defined in article 7
of the 1977 Constitution, which was the first article in the section
dealing with the country's social structure and system. This showed
their importance and confirmed their high prestige. Almost 98 per
cent of the workers were trade union members. The legislation
guaranteed and secured trade union rights and their independence
from any other State body. Section 95 of the Fundamental
Principles of Labour Legislation provided that trade unions
operate on the basis of their own statutes, and they did not need to
register "with any State body. This was in accordance with
Convention No. 87.
In its replies to the comments of the Committee of Experts, the
Government had pointed out more than once that the basis of
Soviet society was joint ownership of the means of of production.
This fact alone explained why the structure« of the trade union
movement was different from that in other countries where there
were different classes in society and why there was no need for
plurality of trade unions. However, the Committee of Experts
ignored in its latest comments the absence of any legislation
prohibiting the establishment of further trade unions. Trade union
pluralism would be an anachronism in the present conditions of the
country. In 1918, the unions themselves, without any legislation
imposed from above, had decided to unite. The Committee of
Experts was seeking to improve its conception of trade unionism ;
it was interfering in the internal affairs of the country, and making
comments concerning its Constitution, which was the expression of
the sovereign will of the people. In this instance, as in others, when
the position of the Committee of Experts was criticised by
Members of the ILO, the said Committee reverted to a purely
formal legal approach concerning the situation in these countries,
and exposed itself to criticism.
Convention No. 87 did not reflect the real state of affairs in the
present world. Her country hoped that the special role and
importance of trade unions in socialist society would be reflected
in a new instrument on trade union rights, which would replace
Convention No. 87. She hoped other Members shared her
Government's concept that a legal system could only be understood
in its own social context.
The comments of the Committee of Experts concerning the role
of the Communist Party in trade unions were also relevant to the
Constitution of the USSR and its social system. Although it
considered that this question was beyond the scope of the
Convention, the Government had furnished detailed explanations,
and the Committee of Experts said it had taken note of these
explanations, but the questions asked, did not indicate that it had.
The Communist Party, under the Constitution determined the
over-all development prospects of the country and laid down the
strategy for its domestic and foreign policy. It expressed the will of
the people.This found its legal expression in legislation and other
legal instruments, which were adopted in accordance with the
existing democratic procedure for the preparation and adoption of
legislation. The trade unions and other organisations participated
at every stage of the legislative procedure. This democratic
procedure implemented the decisions of the Party. These matters
were not covered by Convention No. 87. No concrete example of
violation or of non-compliance of national law with Convention
No. 87 had been cited. The situation in the USSR reflected quite a
different system of legal thinking, which was shared by a whole
group of Members of the ILO. Although Convention No. 87 had
been drawn up in her country's absence, it had ratified the
Convention and complied with its requirements. Continuing
31/47
Document No. 244
ILC, 69th Session, 1983, Report of the Committee on the
Application of Standards, pp. 31/36-31/38 (Uruguay)
ì International Labour Conference <
^ j Provisional Record
Sixty-ninth Session, Geneva, 1983 '
Third Item on the Agenda : Infonnation and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Conventions and Recommendations
CONTENTS
PART ONE: General Report 2
PART Two: Observations and Information concerning Particular Countries 18
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 18
A. General Observations and Information concerning Certain Countries 18
B. Observations and Information on the Application of Conventions 21
C. Table of Detailed Reports on Ratified Conventions 70
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 71
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 72
A. General Observations and Information concerning Certain Territories 72
B. Detailed Reports on the Application of Conventions in Non-Metropolitan Territories 72
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 73
Index by Countries to Observations and Information Contained in the Report 75
8. The principles for the representation of state employees
mentioned in section 16 of the Trade Union Act are laid down in
the Act concerning employees of the State administration of 16
September 1982. Under section 40 of this Act employees in state
administration have the right to join the union of employees in
state administration except: (i) employees in highly responsible
posts whose activities are generally considered to be linked to
policy making or management ; (ii) employees engaged largely in
confidential work. These employees may all create workers'
councils, like other non-unionsed workers. The councils have to
protect and represent the social and occupational interests of the
workers forming them in relation to the management of the
administration. The workers' councils are based on this Act and
their own constitutions (section 41 of the Art). The administration
management and higher bodies must for their part create favourable
conditions for the workers' councils to fulfil their statutory
tasks, examine the motions presented, and inform the councils of
the solutions found (section 42 of the Act).
The principles and the extent of the co-operation between the
managements and the workers' councils are laid down in Council
of Ministers' Order of 8 November 1982. Under paragraph 2 of
the Order, the management must consult the workers' council on
questions of the whole of the staff represented, including : employment
and the realisation of the rights and obligations under the
work relation ; remuneration and payments in favour of workers
and financial policy; conditions of work, hygiene and safety;
protection of workers' health and rest; social payments and
housing questions. The opinion of the workers' council is also
asked for in questions of the ceasing of the work relationship and
the assessment of qualifications, and decisions on payments for
premiums or merit; sharing and use of premium funds; fixing
hours of work and leave rosters ; improving occupational qualifications.
9. As regards interpretation of section 37(1) of the Trade
Union Act (possible protest strikes on questions going beyond the
undertaking, occupation or industrial sector) the following explanation
is given : - the Trade Union Act lays down other forms of
protest than strikes (without specifying them), but strikes going
beyond the undertaking, occupation or industrial sector are not
allowed if there are political aims; however, the Act does not
exclude other forms of protest so long as they do not transgress
public order or the principle of social co-existence : - in the light of
the Act, the rights of unions to organise protest actions are
understood as a means of defending collective economic and social
interests. The Act does not prohibit actions for the defence of
workers' interests when they go beyond the undertaking, occupation
or industrial sector. Detailed regulation of protest actions
other than strikes is made by constitutional provisions and their
permissible aims will be interpreted by the Trade Union Act,
taking account of the position of the Committee of Experts.
10. Under the Trade Union Act section 54, the assets of the
trade union central and the trade unions have been temporarily
placed under the control of a provisional body whose organisation
and functions are fixed by the order of the Council of Ministers of
15 October 1982 on the temporary administration of the assets of
former trade unions, in conformity with the Act's authorisation.
To this end, a Commission for the administration of trade unions'
assets was formed There are 11 people on it: the chairman and 5
union representatives (including "Solidarity") and government
bodies. The Commission undertook the temporary administration
of the assets of the former trade union central and the assets of all
the other unions existing before the Trade Union Act came into
force.
The assets of plant-level unions stayed under the administration
of the chiefs of the enterprises who transmit the union assets to the
new plant unions as the statutory trade union leadership is formed.
These questions are governed by the Council of Ministers' Order
of 27 December 1982 on the principles and modalities of transfer
of the assets of former plant level union organisations. As for the
taking of trade union assets by provisional administrators at higher
than plant level, the Commission called 24 officers to administer
the assets of former union centrals and respective union branches.
The Commission's role is only administrative, i.e. its work is only
what is indispensable for the conservation of assets in a good state
and in conformity with the functions and the destination of their
respective parts. All expenses connected with the administration of
the assets are covered by the State.
In their more than 100 years' activity the unions have accumulated
durable property including 41 sanatoriums, 88 rest centres,
over 50 administrative buildings, hotels and lodgings. The unions
formed after August 1980 had as yet no significant durable
property. " SolidarityV property consisted mainly of means of
communication, reproduction equipment and a large number of
publishing facilities, office equipment and small bank accounts. In
view of the absence of inventories or a complete register of
accounts, there are great difficulties in taking over these assets.
The Commission had taken control of all the assets until the end
of April 1983, the value of the durables being: branch unions
-over 3,719,228,000 zlotys; the "Solidarity" union-more than
36,900,000 zlotys. In addition to the work of taking over and
conserving assets, the Commission organises and oversees the
activities of sanatoriums and rest centres, makes investments and
renovations in them, makes sure the houses of culture function
properly, as well as hotels, clubs, administrative buildings, etc.
11. As regards the management under section 20 of the Trade
Union Act, the creation of unions and inter-union organisations is
allowed, due regard being had to other legal provisions. As the
unions are at the initial stage of organising, the question as to their
fields of action cannot yet be judged. This matter will be governed
also in the appropriate union constitutions.
Syrian Arab Republic (ratification: 1960). The Government has
communicated the following information:
The prohibition óf strikes laid down by section 160 of the
Agricultural Labour Code, No. 134 of 1958, is justified by the fact
that a strike in agricultural activities could result in tremendous
damages and considerable losses. Nevertheless a draft amendment
of the Agricultural Labour Code has been drawn up, in which the
said section 160 is deleted. It has been submitted to the competent
authority.
As regards Legislative Decree No. 84 fo 1968 on trade union
organisation, certain sections of it have been amended by Legislative
Decree No. 30, promulgated on 17 September 1982.
Legislative Decree No. 250 applies to small-scale craftsmen,
whose particular circumstances make it necessary to set up
associations, federations and confederations of craftsmen. While
craftsmen and larger employers are not covered by the provisions
of this Decree, this does not mean that they are deprived of the
right to set up associations which are appropriate for them, or that
the legislative decree prevents them from exercising this right.
As regards management of the assets of associations, these are
managed in accordance with the provisions of their financial
statutes, which are promulgated by the Minister of Social Affairs
and Labour in agreement with the Minister of Finance. The fact
that associations may accept gifts and legacies only with the
authorisation of the Minister works to the advantage of the
associations, as gifts and legacies are governed by laws and in many
cases may come with conditions which run contrary to the
objectives of the association. Likewise, in the event of transfer of
the assets of an association, authorisation obtained in advance
from the Ministry may prevent improper use of the assets.
Concerning the resources of federations and of the confederation,
it is up to the association itself, when drafting its financial
statutes, to fix the percentage it considers adequate.
As regards the nature and role of the peasants' association, it is a
popular economic trade union organisation which carries on its
activity in all areas of peasant trade union activity and productionrelated
activity.
Trinidad and Tobago (ratification: 1963). The Government has
indicated that action has commenced on the amendment of the
Prison Service Act, the Fire Service Act and the Civil Service Act.
An amendment to section 65 of the Industrial Relations Act is also
under consideration.
Uruguay (ratification: 1954). A Government representative
made the following statement :
Developments in Uruguay as regards the application of Convention
No. 87 demonstrated the effectiveness of constructive dialogue
with the ILO. It had been inevitable a few years ago in
conditions of very serious terrorism that difficulties should arise in
the application of the Convention. To deal with them the
Government took measures to consult the most representative
organisations of workers and employers on a Bill concerning
occupational organisations ; it consulted the ILO also on this Bill
to obtain its comments; and it accepted three direct contacts
missions during which the representative of the Director-General
of the ILO was given every opportunity to visit the places and
persons concerned. When the Bill became law the ILO Committee
on Freedom of Association noted with satisfaction important
improvements over the original draft in ensuring conformity with
the Convention. The Governing Body had endorsed these findings
and the Committee of Experts noted with satisfaction the enactment
of the new law and included the case of Uruguay, Convention
No. 87, in its list of cases of progress. The Conference
Committee also noted with satisfaction that following the direct
contacts new legislation had considerably improved the prevailing
situation, and the Director-General's Report noted with satisfaction
the progress made in implementing the Convention.
Consequently the Government had received continuing cooperation
from the ILO, which had helped in overcoming most of
the problem raised, and the Government's attitude had helped to
31/36
solve the trade union problem in the interests of employers and
workers and in the general interest ; Uruguay had made progress
as regards the Convention. There were, however, difficulties
despite this progress, and the Committee of Experts had referred
to several points in need of attention to ensure full application of
the Convention.
The Workers' member of Uruguay requested information from
the Government representative as regards the right of organisation
of public officials and whether Convention No. 151 would be
ratified by Uruguay. He asked for information on the present
situation of trade union leaders. He wished to know when the right
to strike would be regulated in accordance with the provisions of
the Convention and the national Constitution, whether it were
possible to establish national trade union organisations, and what
would be done to grant legal personality to trade unions more
quickly.
The spokesman for the Workers' members stated that the cooperation
and assistance of the ILO had led to improvements in
the legislation, and welcomed the Government's positive attitude,
but several points of practical application were still of concern, as
pointed out by the Committee of Experts. Many trade unionists
remained in detention or in exile and the question was whether
measures would be taken to bring the de facto situation into line
with the de jure situation.
The Employers' members welcomed the progress noted by the
Committee of Experts following the co-operation between the
Government and the ILO in recent years and in particular thanks
to direct contacts. The Government representative had recognised
the difficulties and his acceptance of discussion based on the
comments of the Committee of Experts was to be welcomed.
However, there should be improvements in respect of the continuing
limitation on workers belonging to different undertakings or
branches of activity forming a single basic organisation, as well as
concerning the long waiting period for registration of an occupational
association, under Decree No. 640/973 and the immediate
re-election of trade union leaders was prohibited. The Government
should indicate what it intended to do to bring this legislation
into conformity with the Convention, and that it could give some
idea of when these measures might be taken.
The Government member of the United States indicated that
the dialogue and discussion in the present case contrasted with
certain others, and this was to the credit of the Government of
Uruguay. He also noted that the Committee of Experts had noted
progress in the case of Uruguay on three Conventions in 1983 and
on Convention No. 87 in 1982, and that this gave him confidence
that Uruguay would continue to co-operate with the ILO and to
make an effort to resolve the remaining difficulties.
The Workers' member of Ecuador stated that the Government
was violating the Convention. It was presently only authorising
trade union organisations on a provisional basis, trade unionists
were forbidden to carry on their activities and the police were
continually acting to deprive workers and their leaders of the right
of association. The trade union rights of public officials should be
explained as well as the right to strike, which had been nullified
and suppressed as a court martial crime for ten years contrary to
the Constitution of Uruguay and in violation of the Convention.
The situation was also unclear as regards anti-union discrimination
although the Government said that there was protection against
discrimination in employment. Finally, since the military dictatorship
had been in power many trade unionists were in prison and
even tortured.
The Workers' member of the Netherlands supported the statement
of the Workers' member of Ecuador. As regards the
statement of the Government member of the United States, there
were two levels of dialogue to be distinguished, one concerning the
law and the other concerning practice. There were doubts on this
question and it should be stressed that the Government ought to
enter into a dialogue also in its own'country, particularly with trade
unionists now in prison and deprived of basic freedoms.
The Workers' member of Austria stated that the present case
had been discussed frequently. In 1978 and 1979 there had been a
special paragraph in the Committee's report concerning failure to
apply the Convention and in 1981 and 1982 the legislative and
practical application of the Convention had been discussed. The
Government representative should give more information on the
points raised by the Committee of Experts and other speakers in
the present Committee and indicate how such consideration was
being given to them. All member States of the ILO were under an
obligation to co-operate with the ILO, and the Government's
position should be seen in this light.
The Workers' member of Panama supported the Workers'
member of Ecuador in his statement : the Government representative
should indicate the representative organisations consulted on
the enactment of the law on occupational associations. In this
regard, he wondered about the National Congress of Workers
(CNT) ; however, it had been sent into exile by military decree.
The Workers' member of Colombia supported the previous
Workers' members who had spoken and did not agree with the
view that the Government should be given credit for its statement.
She wondered when trade union freedoms would be observed in
Uruguay since there were still many union leaders detained, even,
in some cases, when they had served their sentences. Thousands of
workers and union leaders had been exiled and could not
contribute to the trade union movement. There could be no trade
union freedom if human rights were not observed in the country.
When would the comrades detained for ten years be set free ? The
Government should respond in a concrete manner.
The Workers' member of Mali said that mere words were
insufficient to solve problems of the practical application of
Conventions and concrete information should be given in particular
as regards trade unionists in exile.
The Workers' member of the USSR fully agreed with the
statements of the other Workers' members. The Workers' group
was unanimous in demanding that the Government restore the
previous situation regarding freedom of association, free imprisoned
trade unionists, and restore democracy.
The Government representative stated that the right of public
officials to form trade unions had been recognised since 1943 by
section 1 of Legislative Decree No. 10388 of 13 February 1943.
The Workers' delegate to the Conference last year had been a
public official. The Government's obligation to submit Convention
No. 151 to the legislative authority had been fulfilled and it was up
to the latter to make a decision on the question. Trade unions were
recognised in national legislation and the Government could not
prevent the occasional dismissal or disciplining of a trade union
leader; what it could do was to compel an undertaking to reemploy
persons concerned when they had been demonstrated to
have been acting for trade union reasons. The right to strike had
been laid down 40 years ago in the Constitution, which stated that
a law would be enacted on the subject. This provision of the
Constitution would be fulfilled and a bill on the right to strike was
under preparation. The Committee of Experts expressed the hope
that this text would not contain provisions conflicting with the
Convention, but there was no Article of the Convention which
referred to the right to strike. As regards delays in granting legal
personality to trade unions, the Committee of Experts had not
considered that the Convention was infringed, but stated only that
it would be desirable to make the waiting period shorter. In view of
the large number of organisations the Ministry of Labour had not
been able to deal quickly enough with this matter, but his
Government undertook to solve the administrative problems. The
Government had responded to the requests of the Committee on
Freedom of Association concerning trade unionists in prison and
had almost resolved the question. Although it was not denied that
some persons were in prison, who had at the same time exercised
trade union functions, it was not accepted that the reasons were to
do with trade unionism. The three direct contacts missions had
been given full facilities to visit persons and places without
restrictions and in the Director-General's Report to the 209th
Session of the Governing Body it was indicated that the reasons for
detaining these persons were not connected with trade union
activities. These persons would be freed when they had finished
their sentences. As regards re-election of union leaders, the
Committee on Freedom of Association had stated that it was the
absolute prohibition which was contrary to Convention No. 87,
whilst in Uruguay there was only a reasonable limit based on the
interests of workers and democratic principles, so that after being
elected for the first time there must be a transitional waiting period
before a further election. Moreover, it was incorrect to state that
organisations which had been registered were subject to provisional
authorisation in order to function on the ground that there
existed a right of veto of trade union leaders on the part of the
authorities.
As regards the questions raised, the occupational organisations
consulted on the preparation of the Act respecting occupational
associations were the same as those sending workers' representatives
to the ILO Conference in recent years, without which the
cases questioning their representativeness would have succeeded.
The opinions which had given credit to the Government for
progress in the application of the Convention were the impartial
ones of the Committee on Freedom of Association, the Governing
Body, the present Committee, the Conference and the Director-
General of the ILO. There had been a great deal of progress in
legislation and it was not denied that there were some difficulties
in practice, although clear progress had been made. The Government
would continue its effort to ensure practical application of
the Convention in order to follow through its effort as regards
legislation.
The Workers' member of Denmark requested a clearer response
from the Government as regards the right to strike. It was
incorrect to state that the right to strike was not covered by the
Convention, as shown, for example, in the General Survey of the
31/37
Committee of Experts this year. He wondered why this right could
not be exercised freely if it was recognised in the national
Constitution.
The Government representative stated that article 57 of the
Constitution recognised the right to strike and envisaged legislation
to regulate it, and the legislation under consideration would
do so.
The Employers' members stated that application of the Convention
had to be at once on the legal, administrative and practical
levels. The Government representative had recognised that there
was progress in applying the Convention, and it was to be hoped
that the comments of the Committee of Experts would be taken
into account so that there would be full compliance with the
Convention in practice as well as legislation and further progress
would be made next year.
The Workers' spokesman stressed that a number of members of
the Workers' group had voiced concern about the situation as
regards the application of the Convention, and he welcomed the
fact that the Government recognised that much remained to be
done. The Workers' members welcomed the progress and noted
the provisions referred to by the Government. They also noted
that there was a bill to deal with the right to strike. They hoped the
Government would ensure compliance with the comments of the
Committee of Experts, and recalled that once legislation was
adopted it would have to be applied as well.
The Workers' member of Ecuador stated that the Committee
should take a decision noting that the Government of Uruguay was
violating Convention No. 87. There could be no satisfaction as to
the information given by the Government representative and the
expression of good intentions did not justify violation of the
Convention. The right to strike was indeed covered by the
Convention and the national Constitution guaranteed it, although
for ten years there had been no enactment on the right to strike
which had existed before the dictatorship. The Government
representative had recognised that trade unionists were in prison
although he had stated that they were not there for trade union
reasons; this, however, was merely an excuse for violation of the
Convention. The speaker named a number of trade union leaders
being detained and referred to a list of more than 70 such leaders
in prison. Furthermore, many very valiant trade union leaders
were in exile and thus excluded from the trade union movement
and thus prevented from playing a leading role in the working
class. The Government could demonstrate its good will as regards
the Convention by offering formally to free imprisoned trade
unionists and to allow the return of The exiled leaders; a simple
expression of good intention was insufficient. The Government
representative's reni"" on the Question of "ublic officiais' risht to
organise was not satisfactory. Measures should be taken to restore
the situation existing before the military dictatorship.
The Workers' member of Cuba associated himself with the
statement of the Workers' member of Ecuador. On 1 May 1983,
200,000 people demonstrated against ten years of dictatorship,
which represented a defeat for it. Further, there had been a call for
a general amnesty by a large number of trade union organisations,
since many union leaders and members were in prison.
The Government representative wondered how the May Day
celebrations, which were authorised by the Government and
where there was apparently very large participation, could be
contrary to the application of the Convention.
The Committee welcomed the dialogue which had been maintained
by the Government concerning the Convention. Like the
Committee of Experts, it noted that there had been progress as
regards legislation following direct contacts. Despite the partial
progress made, the Committee considered that further progress
was possible and it considered that there were serious reasons for
concern regarding the right of association of public officials, for
example, and the exercise of the right to strike, the legal
recognition of union organisations and as regards freeing of
detained union leaders. The Committee expressed the hope that
further progress would be made to guarantee conformity of
legislation and practice with the Convention. The Committee
called for a gesture of good will by the Government to contribute
to improvement in the situation by freeing detained union leaders
and members.
USSR (ratification: 1956). A Government representative made
the following statement :
His Government had supplied all the reports due for the period
ending 30 June 1982 including that on the present Convention,
which continued to be fully applied. Unfortunately the interpretation
given by the Committee of Experts to the situation in various
countries was not always an objective evaluation of the good will
and the information provided by governments, and did not assist in
understanding the socio-economic realities and legal characteristics
of the application of the Convention in socialist countries.
There realities should not be ignored as they were one of the most
important aspects of the experience of member States of the ILO.
Furthermore the report of the Committee of Experts contained
certain disappointing elements because the questions involved
were not only formal legal ones but profound problems of sociopolitical
structure relating to the assessment of different legal
values.
For example, the 17th Session of the Trade Union Congress in
the USSR in March 1983 was of historical importance, gathering
together representatives of all strata of society-workers, peasants
and intelligentsia ; the broadening of the social base of the trade
unions involved the protection of the working class as a whole. Of
130 million trade union members, two-thirds were workers, 12
million were members of collective farms and 33 million were
intellectual, engineering or technical workers, so that the trade
unions covered the majority of workers in the country. There were
32 branches of trade unions and 172 country-wide bodies ; some
25,000 republic and local trade union committees existed ; more
than 749,000 basic trade union organisations were at work
covering 3 million categories of occupation. This was relevant to
Convention No. 87 since it gave a fuller picture of trade union
activities. The 1983 Congress dealt with the need for greater
supervision by trade unions of government activities and those of
economic units, based on the legal provisions in force. In its report,
his Government had shown the co-operation between trade unions
and Soviet authorities and various social organisations, which was
useful to both sides. The legislation guaranteed freedom of activity
of unions : the State could not interfere in their internal affairs and
under the legislation trade unions adopted their own constitutions
and did not have to be registered with state authorities. Section 95
of the Basic Labour Law also required state bodies and undertakings
and organisations to co-operate fully with trade unions in their
activities. Under section 96 of the same Law, the trade unions have
the right to protect the interests of the workers in all respects.
The trade unions functioned on a basis of broad democracy:
they elected their own leadership and delegates by secret ballot
and decisions were taken by a majority. There was no limit to the
right to free speech and criticism or to make proposals, and trade
unions had the right io own property. All of this was fully in
conformity with Articles 2, 3 and 4 of the Convention and trade
union rights in Soviet Law went even further. For example, section
137 of the Penal Code of the Russian Federation and similar
provisions in other republics laid down criminal responsibility for
interference in trade union affairs. Trade unions had in law the
right to ensure the observance of labour legislation and safety at
work and the protection of social rights of the workers under
section 96 of the Basic Labour Law ; they were also involved in
technical and legal labour inspection. Failures of safety at work
were reviewed each year with works management and workers
could not be dismissed without the agreement of the trade union
committee, which also contributed to the resolution of labour
disputes. The conclusion of collective agreements was one of the
main functions of the trade unions also.
The ILO study of the trade union situation in the USSR in 1959
has noted the broad rights and democratic basis of the activities of
Soviet trade unions, and these qualities had since improved under
the new Soviet Constitution. The trade unions participated in the
elaboration of social development plans for workers' collectives
and state development planning. In this way the workers enjoyed
the right of association in a realistic way in conditions of socialist
construction.
The Committee of Experts had in the majority taken no notice
of the practice and although they could find no precise basis for
their observation of the implementation of Convention No. 87,
they again returned to this matter. As regarded sections 7 and 230
of the Labour Code of the Russian Federation referred to by the
Committee of Experts, the former related to the general principle
laid down in section 6 of the Basic Laws of the USSR; it was
unrelated to the question of trade union plurality but dealt with the
conclusion of collective agreements and other activities ; section
230 laid down the most important legal basis for the rights of trade
union committees in undertakings and organisations and was not
thus related to the present Convention. No provision of Soviet law
laid down that there should be trade union unity or prohibited the
founding of trade unions alongside those already existing, so that
the Committee of Experts' observation on this point was without
foundation.
It also appeared that the Committee of Experts was unsure of its
own reasoning since it stated that "it appears to the Committee" ;
indeed there were no legal provisions on which the Committee of
Experts' arguments could be based in this respect.
From a historical and socio-political point of view, it appeared
that the Russian trade union movement had already evolved
towards unity before the 1917 Octoober Revolution, and this was
noted over 20 years ago in the ILO study referred to. The question
of collective agreements between trade unions and undertakings
31/38
Document No. 245
ILC, 71st Session, 1985, Report of the Committee on the
Application of Standards, pp. 30/50–30/52 (United
Kingdom)
) International Labour Conference
¡ft
v Provisional Record
Seventy-first Session, Geneva, 1985
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Conventions and Recommendations
CONTENTS
PART ONE: General Report ' 2
PART TWO : Observations and Information concerning Particular Countries 16
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 16
A. General Observations and Information concerning Certain Countries 16
B. Observations and Information on the Application of Conventions 20
C. Table of Detailed Reports on Ratified Conventions 86
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 87
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 88
A. General Observations and Information concerning Certain Territories 88
B. Table of Detailed Reports on the Apphcation of Conventions in Non-Metropolitan Territories . 88
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 89
TV. Reports on unratified Conventions and Recommendations 92
Index by Countries to Observations and Information Contained in the Report 93
30/1
30/50
United Kingdom (ratification: 1949). A Government
representative
recalled the background to the observation in the
Committee
of Experts' report: on 25 January 1984 the Foreign
Secretary had informed Parliament that certificates had been
signed under the relevant employment protection legislation
exempting the civil service staff at the Government
Communications Headquarters (GCHQ)-a government
establishment staffed by civil servants
engaged in intelligence work of crucial importance for national
security which had to be carried on without any interruption
whatsoever-from the provisions and, in one respect, from the
protection of that legislation. At the same time, the Foreign
Secretary had announced that new conditions of employment
would be introduced for the staff concerned, namely that they
were only allowed to belong to a staff association confined to
members of GCHQ and were no longer allowed to continue as
members of trade unions with a membership extending to other
parts of the public or private sector. The Foreign Secretary had
made it clear that the Government had reached its decision
following long and careful consideration of all aspects, including
the need to avoid a repetition of the industrial action which had
taken place at GCHQ between 1979 and 1981 as a result of
general disputes over pay and other issues. In the Government's
view, the action of the civil service union in selecting GCHQ for
strike action in furtherance of general disputes faced GCHQ staff
with a severe conflict of loyalties. The Government had considered
very carefully its obligations under ILO Conventions before taking
action. His Government had concluded that there was no infringement
of these obligations and it remained firmly of that view.
After the Government's announcement, the civil service unions
and the Trades Union Congress (TUC) had made vigorous
representations to the Government and a series of meetings had
held in which the unions sought to persuade the Government to
reverse its decisions. These discussions had been conducted in
good faith by both sides. The Government, however, had concluded
that the differences between the two sides were unbridgeable
and could not lead to an outcome which would guarantee the
uninterrupted and secure operation of GCHQ in the future. The
unions had decided to pursue their argument by lodging a
complaint with the Committee on Freedom of Association, which
considered the case in May 1984 and again in February 1985. At
its February meeting, that Committee had before it a second
communication from the Government which was very substantial
and included much new material on the interpretation of the
relevant Conventions, and yet it had not addressed this new
material in its report and had expressed the view that the
communication contained no new factual information which would
justify re-examination of the case. That Committee had accordingly
decided that the attention of the Committee of Experts
should be drawn to the communication which, for its part, it had
addressed in its observation.
The Government representative noted that the TUC had alleged
that the Government was in breach of Articles 2, 3, 4 and 5 of
Convention No. 87 but that the Government was arguing that
there was no violation of the principles of freedom of association
because of the existence of Convention No. 151, adopted nearly
30 years after Conventions Nos. 87 and 98. He pointed out that
Convention No. 151 was concerned with the practical application
for the public service of the general principles laid down in
Convention No. 87. Under Article 1(2) of Convention No. 151 the
extent of the guarantees concerning the protection of the right to
organise, which, the Convention provided, applied to certain highlevel
employees or to employees whose duties were of a highly
confidential nature, was to be determined by national laws or
regulations. It was accordingly clearly intended that the protections
in Article 4 of the Convention against anti-union discrimination
should be matters for governments to determine as regarded
employees in highly confidential work. In the case of the United
Kingdom the Government had exercised its right to make the
national laws and regulations in respect of its employees at
GCHQ. He recalled that the unions had contested the Government's
action and that the highest British court, the House of
Lords, had confirmed that the Government had acted in the
interests of national security in this case and that its actions were
lawful.
It was the practice of the ILO to ensure that Conventions it
adopted did not conflict, and it was the Government's view that
Convention No. 87 could not be examined in isolation from
Conventions Nos. 98 and 151. It appeared from the records that
there had been some dispute about the application of Convention
No. 87 to the public service and that there was therefore a need for
an instrument to deal specifically with this area. Convention No.
151 had consequently been adopted and overtook the generality of
Convention No. 87 in this respect. It was clear from the Preamble
to Convention No.151 that it had been adopted with the two
earlier Conventions in mind.
He also recalled that the TUC had drawn attention to Article
1(1) of Convention No. 151, which provided that the Convention
applied to all persons employed by the public authorities to the
extent that more favourable provisions in other international
labour Conventions are not applicable to them. The TUC contended
that Convention No. 87 was clearer and more favourable
than Convention No. 151. The Government, on the other hand,
considered that this view made a nonsense of Convention No. 151
and, in particular, Article 1(2) thereof. It seemed indeed that
Conventions Nos. 87 and 151 were interwoven and Article 1(2)
must also have the effect of superseding, where appropriate, the
corresponding provisions of Convention No. 87 ; Article 1(1) of
Convention No.151 was in no way intended to detract from the
provisions of Article 1(2) and there were no grounds for the TUC
contention to that effect. Convention No. 151, and in particular
Article 1(2) of that Convention, must mean what it stated, namely
that it was for governments to determine, by national law and
regulations, the extent to which the protections provided for in the
Convention applied to workers, in this case engaged in highly
confidential work. This was what his Government had done.
Point 6 in the observation of the Committee of Experts did not
address these issues themselves, but noted that they involved
difficulties in respect of which the International Court of Justice
might more appropriately be requested to provide an opinion. The
Government representative therefore thought it was clear that the
Committee of Experts had recognised that the interpretation of
the Conventions adopted earlier by the Committee on Freedom of
Association was not the only sustainable one and was not
necessarily definitive. If the experts had concluded that the
conclusions of the Committee on Freedom of Association were
definitive, they would have said so. The fact that the Committee of
Experts discussed the possibility of referring the interpretation of
the Conventions to the International Court of Justice showed that,
in its view, the arguments advanced by his Government were
serious and substantial and merited further detailed consideration
before a definitive view could be reached.
The Government representative recalled that the Committee of
Experts had endorsed the view of the Committee on Freedom of
Association that if appropriate negotiations with the relevant
organisations had taken place the Government's stated objective-
of ensuring the uninterrupted and guaranteed and continuous
operation of the work at GCHQ-could have been achieved in an
atmosphere in which harmonious industrial relations could have
been preserved and in which the compatibility of government
measures with ratified international labour standards would not
have been brought into question. The experts had also drawn
attention to the limitations which might, in accordance with ILO
principles, be placed on the right of public servants to organise and
on the means of action available to public servants. While
welcoming this very helpful and constructive suggestion from the
Committee of Experts, he noted that one highly relevant point
made by the ILO supervisory bodies in this connection was the
possibility of "no strike agreements" which would make it
unnecessary for governments to proceed with the suspension of the
formal rights of freedom of association and collective bargaining.
The circumstances, however, considered by the Committee of
Experts in this connection in its 1983 General Survey, differed
from the situation confronting the United Kingdom: first, they
related to situations where the governments in question acknowledged
that the rights conferred by ILO Conventions normally
applied to the workers concerned ; as had already been indicated,
his Government did not take that view in respect of the staff at
GCHQ under the relevant ILO Conventions. Secondly, the
circumstances considered by the Committee of Experts did not
relate to situations where considerations of national security-the
security of the State itself-as opposed to public safety were
concerned. This rase was indeed a unique one, and his Government
did not regard the precedents to which the Committee of
Experts referred as offering a possible approach in this case. He
stated that his Government had very seriously considered whether
a solution to the GCHQ problem could be found through renewed
negotiations with the unions concerned. It had concluded regretfully
that further negotiations with the unions would not serve a
useful purpose. It was, moreover, reinforced in its view by the fact
that two of the main civil service unions concerned had formally
rejected at their annual conferences last year any negotiations
directed towards the possibility of concluding a "no strike agreement"
at GCHQ. The unions, of course, could not change their
positions on this point, but this possibility itself reinforced the
Government's position because it considered it essential in the
national interest to ensure the uninterrupted future operation of
GCHQ and that situation could not be guaranteed if agreements
entered into by the unions representing the workers concerned
could be repudiated at any time in the future as a result of a change
in position of the unions concerned.
The Worker member of the United Kingdom considered that
the argument just presented by the Government representative
was a legal evasion and an attempt to obscure the issue which he
would clarify in reminding the Committee that the Government
had offered the biggest bribe in the history of the trade union
movement to the civil servants at GCHQ to give up their trade
union rights. They had been offered £1,000 and there was, of
course, another alternative if they did not take the bribe : they
could be fired. He believed that it was a great credit to the ILO, its
30/51
standards and the beliefs of the w6rking people of Great Britain
that many employees had refused the bribe and he considered that
the Government at the present moment was afraid to dismiss
them. It was afraid to do this because it was worried about the
ILO's opinion and because the British trade unions had indicated
that if one person was-dismissed there would be a general strike of
all trade unions in Great Britain.
He recalled that the Committee on Freedom of Association had
expressed the hope in its definitive conclusions that discussions
would result in a resolution of the dispute and the restoration to
these particular civil servants of the well-established right to join
and belong to a trade union. At its second consideration of this
case in February 1985, that Committee had reaffirmed its view
despite the new facts which the Government alleged had been
brought to light. He stressed that the Government was in total
defiance of these conclusions and had tried to cause confusion by
arguing that Convention No. 151 overrode Convention No. 87.
That was not so, all the more so because if a situation was accepted
where other Conventions overrode the fundamental Convention
No. 87, then every State would be able to escape its obligations
under it. The Government itself had consistently praised the
Committee of Experts for its impartiality and had emphasised the
importance of universality of standards; he therefore wondered
whether the Government was now asking, or was on the verge of
asking, that special standards should be set for it.
He hoped that this Conference Committee would reaffirm that
there was only one standard which was applicable to all. The
Committee of Experts had concluded that, as regarded the specific
issue raised before the Committee on Freedom of Association and
referred to by the TUC and having regard to Convention No. 87,
the conclusions of the Committee on Freedom of Association were
well founded. There could not lie anything more positive than that.
Referring to the mention of the International Court of Justice,
he challenged the Government, if it believed there was some
doubt, to take the matter to lhat Court. As regarded the temporary
victory won by the Government in the British courts, he considered
that the problem was the definition of "national security".
He offered one definition: national security was involved when the
British Government said it was involved ; that was really what the
Government had argued in court. In political terms, however, it
implied a measure of faith in the Government which the workers
were not prepared to accept. Unions had existed in GCHQ since
1947 and the strike action referred to in 1981 was not a mere pay
dispute, but a fundamental problem concerning the Government's
unilateral abolition of a pay agreement that had existed for 25
years in the country. GCHQ had not been specifically involved,
but it had joined in, on one or two occasions, in one-day or halfday
strikes. He noted that it had been three years later when the
Government had decided that national security was so important
that the trade union should be banned in GCHQ. The Government
had stated that the delay was due to the fact that it had never
publicly admitted to the existence of GCHQ until 1983 when a spy
had been caught there. Given the circumstances of the geographical
setting of that huge establishment, he could not believe this.
Lastly, he stressed that the trade unions, backed by the TUC, had
indicated that they would be prepared to reach agreement with the
Government on the question of no strike agreements in GCHQ
subject to the same guarantees recommended by the Committee of
Experts in the special circumstances where strikes were prohibited.
The Government, however, was too stubborn to change its mind.
He felt, nevertheless, that it really had to because that was what
the Committee of Experts expected and he hoped that this
Committee would confirm this. He asked the Government to 11gree
here and now that there would be consultations with the trade
union movement, led by the TUC, to reach a settlement; or, if
legal doubts still existed, to take the matter to the International
Court of Justice. He realised that the situation concerning GCHQ
might not appear as pressing 'or serious as trade union problems
facing workers in other countries, such as death, imprisonment,
etc., and realised that a -sense of perspective had to be kept in
mind. It was, however, a shame that a country which had been the
birthplace of trade unionism for many countries and a source of
inspiration for the whole world had acted in this way. If a
government could get away with this denial of human and trade
union rights, dictators throughout the world would feel free to
perpetrate even worse evils. The workers were entitled to express
their serious concern at the Government's attitude and unless
something more constructive could be done, perhaps a special
paragraph might persuade the Government to change its present
position.
The Employers' members noted that the case raised novel and
complex legal issues on the relationship between Conventions Nos.
87 and 151. The fact that the arguments had gone beyond the
specific matter of Convention No. 87 had led the Committee of
Experts to suggest that the opinion of the International Court of
Justice might more appropriately be sought. They would be
30/52
interested to see what the outcome of any further consideration of
this case might be.
The Workers' members considered that the matter was very
clear and hoped that the wisdom shown in the Committee on
Freedom of Association's conclusions, endorsed by the Committee
of Experts, would be taken up, namely for all parties to sit down
together to find a solution. This should also be this Committee's
approach.
The Committee took note of the detailed explanations given by
the Go.vernment member of the United Kingdom and the very full
discussion that had taken place in the Committee. It hoped that the
Government would be able to find appropriate solutions to the
problems raised by the application of the Convention, taking into
account the comments of the Committee of Experts.
The Chairman of the Committee, replying to the Workers'
members and the Government member of Bulgaria, said that the
reference to the comments of the Committee of Experts covered
the reference made by that Comttee in its comments on the
conclusions and recommendations of the Committee on Freedom
of Association.
Document No. 246
ILC, 72nd Session, 1986, Report of the Committee on the
Application of Standards, pp. 31/32-31/34 (Syrian Arab
Republic)
lnterna_tional Labour Conference 31
Provisional Record
• Seventy-second Session, Geneva, 1986
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recoinmendations
Report of the Committee on the Application of Conventions and Recommendations
CONTENTS
PART ONE: General Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PART Two: Observations and Information concerning Particular Countries . . . . . . . . . . . . . . . . . . . . . 20
I. Observations and Information concerning Reports on _Ratified Conventions (article 22 of the
Constitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. General Observations and Information concerning Certain Countries ... •. . . . . . . . . . . . . . 20
B. Observations and Information on the Application of Conventions. . . . . . . . . . . . . . . . . . . . 21
C. Table of Detailed Reports on Ratified Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) . . . . . . . . 62
II. Observations and Information concerning _the Application of Conventions in Non-Metropolitan
Territories ( articles 22 and 35 of the Constitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
. .
A. General Observations and Information concerning Certain Territories. . . . . . . . . . . . . . . . . 63
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan Territories . 63
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) .................. : . . . . 64
IV. Reports on unratified Conventions and Recommendations (article 19ofthe Constitution) ....... • 68
. .
Index by Countries to Observations and Information Contained in the Report . . . . . . . . . . . . . . . . . . . . 69
31/1
problems had arisen as a result of some disturbances in certain
universities; the deaths of some students had occurred as a result
of confrontations with the police. The persons had been arrested
because of their participation in demonstrations in violation of
existing law. It was not therefore a union problem, but rather one
concerned with law and order and state security. He referred to the
possibility in his country of having recourse to the courts and to the
power of the Central Labour Organisation in Nigeria.
The Worker member of Nigeria stated that the people arrested
had been accused of subversion and that all were trade unionists.
In June, a demonstration had been organised by the Central
Labour Organisation but, in the face of repressive force, it had
been cancelled. Subsequently, trade unionists had been arrested
and 14 of them were still ,in prison. Those others• arrested who
were not officials of the Nigeria Labour Congress, as referred to by
the Government representative, were trade union members of the
Academic Staff Union of Universities (ASUU) which was affiliated
to the Central Trade Union.
The Workers' members stated that, contrary to what had been
said by the Government's written submission, i.e. that the Government
had "never clamped down on workers for going on strike",
trade union leaders had been arrested for participating in trade
union action, trade union leaders had been arrested for participating
in trade union action. The Workers' members appealed to the
Government to release the 14 trade unionists still in prison. They
asked that the behaviour of the Government with regard to the
arrest of the trade unionists, which constituted a violation of the
Convention and the principles of the ILO, should be referred to in
the conclusions.
The Government representative stated that it was a matter of
two different questions; primarily there was a problem linked to
the demonstration, which should not be linked to those problems
concerning Convention No. 87. Solutions were already under way
by peaceful means. He raised serious objections tp the inclusion of
this question in the conclusions of the Committee.
the Committee took note of the written and verbal replies
which had been provided. The Committee noted that divergencies
still existed between the national legislation aQd the provisions of
the Convention. The Committee requested the Government to
take the necessary steps to bring the national legislation into line
with the provisions of the Convention.
Syrian Arab Republic (ratification: 1960). A Government
representative emphasised the necessity of improving the methods
of work of the Committee of Experts and, in particular, the
necessity of taking into consideration the economic, social and
political realities of the countries considered. It was impossible to
supervise the application of Conventions without understanding
the prevailing reality of the country in question. His Government
attached great importance to ILO standards but it was not entirely
satisfied with the conclusions which the Committee of Experts had
arrived at in regard to the application of the Convention in his
country. He recalled that, according to the ILO Constitution, the
Committee of Experts only had ir consultative role; their opinions
were of a technical and legal nature which did not create any
obligations. There was a contradiction between the comments of
the Committee of Experts which stated that trade unions played an
essential role, and its conclusions which cast doubt on the freedom
which trade unions. enjoyed. In his country, trade unions participated
in the making of decisions in the economic and social
domains. No impediment was imposed on their freedom. Trade
unions were freely established and trade union leaders were freely
elected. No one had the right to interfere in this procedure. After
having noted the effect of ratification of international Conventions
on national legislation, the speaker recalled that the provisions of
the Convention were very flexible and that they therefore permitted
a certain degree of interpretation.
He clearly described the provisions of Legislative Decree
No. 84, In particular, sections 5 and 6, which provided that the
establishment of unions and their affiliations in the districts was a
matter within the competence of the workers alone and that
nobody could interfere with their decisions. Pursuant to section,7
of the Legislative Decree, district trade unions and professional
unions had the right to establish a general federation of workers'
trade unions with its seat in Damascus. On this basis, the
Committee of Experts stated that these provisions prohibited the
establishment of any other trade union and imposed a single trade
unibn system with one central organisation. In reality, the system
was completely different: the trade unions were perfectly autonomous
and the central affiliation system was aimed at protecting
the interests of trade union members. If the manner in which trade
union affiliation occurred in all the districts and sectors of the
country were to be examined, it would be established that the
workers voluntarily chose to join a central trade union. The central
affiliation system enabled the workers to attain their objectives
and their ambitions of having partner status in negotiations. While
31/32
the law allowed trade unions to affiliate with a central body, which
they had themselves decided to do, this did not mean that the law
imposed the principle of trade union unity because the decision
was made autonomously in various districts which had established
various types of trade unions. As long as the stru~ture of a country
provided for the establishment of trade unions and for the
affiliation of professional organisations, and as long as this
affiliation was completely free and autonomous, it should be
concluded that these numerous possibilities represented the essence
of a trade union system and structure which was diverse and
which was composed of various elements. Legislative Decree
No. 84 had been added to by Legislative Decree No. 250 of 1969
concerning professional trade unions and by Act No. 21 of 1974
concerning peasants' co-operative associations. Furthermore, a.
teachers' union had been established pursuant to a Decree of
1982. In each district, various associations .existed which were
comprised of completely different types of trade unions and
workers such as professional associations, employers' associations,
teachers' associations, associations for the self-employed, and
Chambers of Commerce, Industry and Agriculture. All of these
associations were concerned with the well-being of their members.
This demonstated the multiplicity of the trade union system. Each
trade union had its own autonomy, full liberty and its own rules of
procedure.
There were perhaps differences of interpretation with regard to
the Convention. It was for this reason that the present Committee,
in accordance with its terms of reference in the Conference, should
examine in depth the cases which were submitted to it before
adopting its position. This question was a matter pertaining to
national sovereignty and of great international importance. -The
Committee of Experts had pointed out that section 25 of Legislative
Decree No. 84 provided for different treatment for non-Arab
foreign workers. Further, this provision established the right of
foreigners to join trade unions with the reservation of reciprocity:
the adoption of a clause of reciprocity was a right of state
sovereignty. In practical terms, no workers had ever been refused
the right to belong to a trade union or deprived of their rights as
citizens.
The Committee of Experts had noted that section 32 of
Legislative Decree No. 84 was not in conformity with the
Convention because it ·did not ~allow associations to accept
donations in money or in any other form without the approval of
the General Federation and the Ministry. In this regard, legislation
governing donations applied to all citizens, all organisations and all
sectors. In this regard, a law existed which precisely detailed which
donations could be accepted. It would ·not be logical to accept a
donation from a person or organisation which did not support the
national objectives and which would threaten the sovereignty of
the country. It was the opinion of the Government representative
that the Convention adopted the same interpretation on this point.
This regulation therefore did not constitute an interference with
the principle of freedom of association.
The provision of section 35 of Legislative Decree No. 84, which
gave the Ministry the right to financial supervision of trade union
funds, had been introduced to ensure that the accounts be properly
kept. The way in which the funds were spent and the purposes for
which they were used was a decision for the trade unions, and the
Ministry had absolutely no say in these matters. Instructions issued
by the ,Ministry in 1968 state that it was important to verify the
books and financial statements and to give advice to all those
responsible for maintaining the books to assist them in avoiding
errors. This showed that the supervision exercised by the Ministry
was in the nature of assistance and did not impinge upon the
,freedom of unions.
Section 36 of Legislative Decree No. 84, which provided for
financial assistance to be given to trade unions, should not be
considered any impediment to freedom of association because the
union structures and affiliations were chosen by the organisations
and they had a right to this financial asistance.
In regard to section 44 of Legislative Decree No. 84, a condition
of having exercised an occupation for six months was required to
be eligible for membership in a trade union. This provision had
been adopted to ensure the competence and training of trade
union leaders and thus did not pertain to freedom of association.
In regard to, inter alia, section 49(c) which authorised the
dissolution of the executive body of a union in the case of serious
misconduct, he noted that this provision could not be put into
effect until an investigation into the nature of the misconduct
engaged in by the body had taken place. According to the national
legislation, the withdrawal of confidence from the members of the
executive organ fell within the competence of the general leadership
of the Federation, which only reflected the wishes of the trade.
union which had requested the dissolution of its executive body.
With respect to section 160 of the Agricultural Labour Code,
which prohibits the right to strike in the agricultural sector, a draft
law had been submitted by the Government to repeal this
provision. However, the legislative process takes time and this
question was still before the competent authorities. The Government
would undertake every effort to ensure that the abovementioned
provision would be repealed.
In conclusion, .the Government representative stated that it was
not a question of the Government asking for assistance from the
Office in order to find a solution to these matters; rather it was a
problem of interpretation and not a problem of the implementation
of the Convention.
The Workers' members stated that it was not necessary to reopen
the discussion of the role of the Committee of Experts. The
Committee of Experts was not the only body which discussed the
application of Conventions; there was also the present Committee.
It was false to claim that the Committee of Experts considered
questions which were not within its sphere of competence because
it received its terms of reference from the Governing Body. The
Committee of Experts' evaluation of the application of Conventions
was essential to the work of the.present Committee.
In regard to this case in particular, .certain remarks should be
made. In the first place, since 1983 the present Committee had
discussed more or less the same questions as were presented today.
This meant that it was necessary to find the means to resolve the
divergencies, or as the Government representative had said,_ the
differences of interpretation, which should be eliminated. Secondly,
it should be. recalled that there were national legislative
provisions which were not legally in conformity with the Convention.
This included the single trade union system, the interference
of public authorities in trade union administration, the supervision
of their accounts and the problems in the agricultural sector.
Certain positive aspects could be noted such as the adoption of Act
No. 1 of 1985 which authorised public servants to form their own
trade unions. Further, the Government had shown its willingness
to review a certain number of problems. However, many other
points of difficulty remained. It was regrettable that the Government
representative had stated that his Government did not need
the assistance of the Office, because there was every basis for
believing that, without this assistance, the situation would not
change. The problems between the Committee of Experts and the
present Committee on the one hand and the Government on the
other hand would remain, and there was the risk that the problems
would become more acute. It was for this reason that the Workers'
members insisted. that the Government representative and his
country envisage to accept a direct contacts mission wherein the
situation could be clarified and the measures which should be
taken could be examined.
The Employers' members expressed their appreciation to the
Government representative for the very detailed information. In
response to the objections raised by ·the Government representative
in regard to the role of the Committee of Experts, it was
recalled that the majority of members of the present Committee·
had subscribed to certain conclusions. First of all, the work of the
Committee of Experts has a well-founded legal basis; secondly,
the Committee of Experts, had been doing excellent work for
decades; and lastly, there was no other alternative to the supervisory
system or, more particularly, to the Committee of Experts.
The report of the Committee of Experts had noted certain
changes in the situation in the Syrian Arab Republic. In particular,
public servants had the right to form their own trade union.
Furthermore, last year the Government had announced that it was .
undertaking a serious study regarding the problems which had
been raised in the present Committee. This study having been
undertaken, and the present Committee having been informed of
it, constituted a certain acceptance that measures still had to be
taken. As the Committee of Experts had noted, certain problems
continued to exist. The legislation contained provisions which
provided for a single trade union structure ; this system was
contrary to the Convention. There also existed other restrictions
on the freedo!Il of association in regard to the trade union rights of
non-Arab foreign workers, the administration of trade unions, the
auditing of their finances, and so forth. It was not possible for the
present Committee to engage in a discussion to examine the
statement of tlie Government representative in great detail.
However, the objective should always remain the same: to
eliminate the discrepancies between the legislation and the practice
on the one hand and the Convention on the other hand. The
Government had rejected the idea of direct contacts because the
problems which existed were not a matter of application but a
question of interpretation of the Convention. In this regard, there
would be no opposition to limiting direct contacts to one aspect of
the problem and eliminating the other aspects. There was no
reason why difficulties of interpretation could not be made the
subject of this type of assistance. The borderline between problems
of interpretation and problems of application was not always
easy to distinguish. In this situation, the Employers' members
believed that this type of assistance would be very useful and it
would be worth while to see whether the discrepancies which
existed could be· overcome. through this process. In any case, it
would be a sign of goodwill and trust on the part of the
Government. It was for this reason that they requested the
Government representative to reconsider his position because
there did not appear to be any other possibility of improving the
situation after all these years of discussion.
The Worker member of the Byelorussian SSR noted that the
statement made on behalf of the Workers' members did not
completely reflect the prevailing opinions within this group. For
his part, he fully accepted the information provided to the present
Committee by the Government representative.
The Government member of Czechoslovakia noted that the
problem of whether or not trade unions could be established
within the framework of a single trade union system had been
discussed on many occasions by this Committee in connection with
a number of other countries. The position of the Committee of
Experts was founded upon legal arguments ;1 it made a distinction
between trade union unity and trade union monopoly. There
existed a variety of industrial relations systems as well as national
economic and social conditions in which trade unions developed
their activities. In this regard, it was interesting to note that the
prevailing tendency in the ILO was to describe situations in
developing countries as trade union monopolies and, as such,,
declare them to be incompatible with the Convention, whereas
sin;tilar situations in the industrial market economy countries were
always considered to be examples of trade union freedom and
unity. This seemed to be an oversimplification and it did not
provide a full picture of the situation. In considering the case of the
Syrian Arag Republic, he noted that it was the workers themselves
who decided freely what course of action to undertake. They
certainly desired strong trade unions and they were aware that
their interests could not be correctly defended in the absence of a
solid union structure. In addition, trade unions in the Syrian Arab
Republic were becoming aware of their responsibility for nation·a1
economic and social development and new avenues were open to
them to, defend the occupational interests of their members, such
as by participation in various decision-making bodies. In regard to
the possibility of establishing trade union organisations outside the
existing structure, the Government representative explained the
situation in a very convincing manner. In addition, it should be
remembered that there were situations in other countries, including
the IMEC countries, where it was nearly impossible to
establish a trade union organisation outside of the existing central
organisation and, in such cases, no one ever doubted the conformity
of the legislation and practice with the Convention. It was
most important to ensure that workers had the right to form trade
unions in all branches of the economy and regions of the country
even if it was within the existing framework, and that workers had
the right to freely elect their representatives. The Government had
given its assurances in this direction; therefore, there was no
reason for concern. Moreover, the Government representative
stated that his Government was willing to continue the dialogue in
order to clarify certain aspects of the problem, even if it did not
want to have recourse to direct contacts.
The Government member of -the German Democratic Republic
stated that the information presented by the Government representative
of the Syrian Arab Republic clearly showed the
importance which it attached to trade union rights. The trade
unions had a right, to a large extent, to co-determination and this
placed them in a position to exert a considerable influence on their
country. It was clear, in light of the statement of the Government
representative, that the Committee of Experts had not fully
understood the situation in this country. The Government did not
need direct contacts to govern the question of industrial relations.
To the contrary, what it needed was a certain amount of
understanding of the reality of the prevailing situation in the
country. The Syrian Arab Republic was one of those countries
with a single trade union system. In this regard, its Government,
like the others, would not be in agreement with the conclusions of
the Committee of Experts, which described this situation as not
being in conformity with the Convention. The free establishment
of a single trade union allows workers in developing countries to
be better represented by trade unions and to closely participate in
the development of their country. In regard to the Committee of
Experts' conclusion that the workers did not have the right to
strike, it should be recalled that no mention was made of the right
to strike in any of the provisions of the Convention. Further, the
Committee of Experts had noted that the prohibition of strikes was
not in conformity with Article 3 of the Convention. This conclusion
was not based on the text of the Convention but rather should
be considered as a personal interpretation of the Committee of
Experts. Such a method of work should be rejected because it was
in direct contradiction with the principle which required governments
to report upon the instruments they had ratified. Any other
conclusion would lead to uncertainty and legal insecurity which
would dissuade new ratifications because States would be unable
31/33
to know in advance the interpretations which would be given to the
Conventions. Further, such interpretations were made by bodies
like the Committee of Experts, which had no competence in these
matters. The case of the Syrian Arab Republic did not constitute
the only case where the Committee of Experts had shown an
intolerant attitude. This made it even more important for measures
to be undertaken for the democratisation of the methods of work
in regard to supervision. In conclusion, the speaker stated that the
Committee of Experts should adopt a more realistic approach in
the examination of this case and he welcomed other voices which
he had heard to the same effect during the course of this
discussion.
The Workers' members recalled the necessity of examining the
case of the Syrian Arab Republic. They stated that Convention
No. 87, ratified by this country, provided the same obligations for
all countries. A single trade union system should not be imposed
by the legislature or a political authority but should be left solely to
the free will of the workers. In accordance with the Employers'
members, they insisted that the Syrian Arab Republic accept
appropriate assistance which would help overcome the problems
of interpretation. •
The Government member of the USSR emphasised the very
detailed nature of the information provided by the Government
representative of the Syrian Arab Republic in connection with the
principal position of the Government on the trade union movement
in his country and on the observations made by the
Committee of Experts, as well as certain other questions. He took
into account the remarks the Government representative had
made in regard to the methods of work of the Committee of
Experts. The reports of the Committee of Experts served as a basis
for the discussion of the individual cases; therefore, it was not
possible to avoid discussing its methods of work. This did not
constitute reopening the general discussion, but it was necessary,
when a Government representative had objections to the position
taken by the Committee of Experts, that the representative be able
to present his position. If his Government had objections concerning
the report of the Committee of Experts, it was because the
observations of the Committee of Experts were founded upon
certain preconceived ideas. This particularly applied to Convention
No. 87 on the basis of which the Experts tried to impose trade
unions pluralism despite the numerous discussions which had
taken place on this question in the present Committee. Finally, the
speaker stated that it was for governments to decide themselves
whether to accept direct contacts in their countries. Such a decision
involved a matter of state sovereignty. The Committee, therefore,
should not take a decision to impose on a government the
obligation of inviting or accepting direct contacts.
The Worker member of the USSR considered that the Government
representative of the Syrian Arab Republic had demonstrated
in a convincing manner and on the basis of concrete facts
that the Convention was fully applied in his country. The
Committee of Experts was itself aware that there had been
improvements in certain areas, particularly in regard to the right of
public servants to form their own organisations. It was also noted
in the statement of the Government that the workers in the
agricultural sector had the right to participate in finding a solution
to all their political, economic and other problems. In general, this
was a question which depended upon the manner in which the
Convention was interpreted. Two questions were put forward: the
question of the control of trade union funds and the question of
whether to have a single or pluralistic tr_ade union system. In
regard to_ the first question of the control of trade union funds, the
social and economic conditions prevailing in the country must be
taken into account. It was well known that, in various countries,
certain forces were deployed to disrupt trade union organisations
and that enormous amounts of money were used to corrupt trade
union leaders towards a political end. It was therefore necessary to
take measures to improve this situation, and this had to be taken
into account. The second question, which had been discussed for a
number of years, concerned the priorities which should be given in
the implementation of Convention No. 'i!:7. Was it to establish the
plurality of trade unions or to ensure the existence of a trade union
movement? For many years, a number of arguments had been put
forward which were not well founded. According to them, trade
union unity was a good thing when it was implemented solely by
the workers themselves, but if it were laid down by legislation it
would not be appropriate. The imposition of plurality in trade
unions as the only principle which was permitted to ensure the
development of the trade union movement was erroneous and
should he rejected. He welcomed the submission next year by the
Committee of Experts of its proposals concerning its methods of
work.
The Worker member of the German Democratic Republic, who
also spoke on behalf of the Worker member of Czechoslovakia,
stated that he fully supported the very convincing statement of the
Government representative of the Syrian Arab Republic. He
31/34
stressed that this case showed once again the one-sided interpretation
of the Convention given by the Committee of Experts. In the
country in question, the trade union structure was determined by
the unions ; they decided to establish a single trade union system in
order to defend the interests of their members. The legislation
reflected their decisions and therefore was not in violation of the
provisions of the Convention.
The Government members of Bulgaria and of the Ukrainian
SSR, and the Worker member of Bulgaria noted their full support
for the statements make by the Government members of the
German Democratic Republic, Czechoslovakia, the USSR, as well
as of the Worker of member of the USSR.
The Government representative of the Syrian Arab Republic
recalled that the Experts were able to be wrong sometimes because
they are human. He emphasised the particularly flexible nature of
the Convention which opened the door to a number of possible
interpretations. It would be desirable for measures to be taken to
determine criteria for interpretation in order to avoid situations
such as this one coming before the Committee year after year: The
fact that the Government did not want either technical assistance
or direct contacts did not mean that it refused them. The
Committee of Experts should define and clarify its interpretation
of the Convention.
The Committee noted the detailed information supplied by the
Government representative and the discussion that had taken
place in the Committee. It noted that a number of differences of
opinion existed with regard to the implementation of the Convention.
The Committee expressed the hope that appropriate steps
would be taken, preferably in co-operation with the International
Labour Office, to resolve these interpretation difficulties.
The spokesman of the Workers' group stated that he understood
the reference to the co-operation with the ILO to mean appropriate
assistance designed to put an end to the differing interpretations
of the Convention. •
Convention No. 95: Protection of Wages, 1949
Dominican Republic (ratification: 1973). The Government has
communicated the following information:
l. Legislative measures
(a) Article 2 of the Convention. The Government of the Dominican
Republic reiterates that the economic, political and social
conditions of the country have not permitted the approval of a
provision which could extend the provisions of the Labour
Code relative to the protection of wages to agricultural
undertakings which employ ten or fewer workers.
(b) Article 3. The Government repeats what it indicated earlier,
that these practices have been abandoned. It is hoped to
expressly repeal this provision during the revision of the labour
legislation.
(c) The Government reaffirms what it stated at the 71st Session of
the International Labour Conference, that internal legislative
difficulties have prevented the submission of concrete drafts
relative to these recommendations to give effect to the
requirements of Articles 5, 6, 8, 10, 13, 14 and 15 of the
Convention. Nonetheless, these provisions are given effect in
practice.
2. Measures to guarantee the payment of the legal minimum
wage in agriculture
The legal minimum wage in agriculture is paid on a regular basis.
The majority of the workers in the countryside prefers the system
of payment on the basis of output and bonuses, since this.is more
beneficial to them. In the sugar industry the system of payment is
on the basis of the amount of the worker's output, which exceeds
the minimum wage established when based upon an eight-hour
day's work. In relation to the distribution of cane cutters' working
hours, the Government refers to its previous comments, in which is
explained that it has not been possible to establish a precise
number of working hours for cane cutters since they are paid on
the basis of the amount of cane cut, since the worker chooses the
most convenient hours in terms of temperatur~, etc., in which to
perform his or her work. The authorities supervise the accuracy of
the weighing of the sugar cane, with the representatives of the
workers supervising in order to check the exact weight of the cane
cut.
3. Payment of wages in negotiable wage vouchers
The Government repeats what it stated in its report regarding
this Convention, that the practice of paying wages in negotiable
wage vouchers has been abolished, and that the provision in the
Labour Code will be repealed as soon as it is revised.
Document No. 247
ILC, 78th Session, 1991, Report of the Committee on the
Application of Standards, pp. 24/37-24/40 (Colombia)
-™j Provisional Record
Seventy-eighth Session, Geneva, 1991
Third Item on the Agenda : Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
PART ONE : General Report 2
PART TWO : Observations and Information concerning Particular Countries 24
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 24
A. General Observations and Information concerning Certain Countries 24
B. Observations and Information on the Application of Conventions 29
C. Table of Detailed Reports on Ratified Conventions 91
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 92
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 93
A. General Observations and Information concerning Certain Territories 93
B. Table of Detailed Reports on the Application of Conventions (Non-Metropolitan Territories) 94
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 95
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) 97
Reports received by 22 June 1991 relating to the Paid Educational Leave Convention, 1974
(No. 140), and Recommendation, 1974 (No. 148), and the Human Resources Development Convention,
1975 (No. 142), and Recommendation, 1975 (No. 150). 97
Index by Countries to Observations and Information Contained in the Report 98
24/1
t
Convention No. 87: Freedom of Association and Protection of
the Right to Organise, 1948
Colombia (ratification: 1976). A Government representative
of Colombia, Minister of Labour and Social Security, stressed the
improvements with regard to Convention No. 87 brought about
by Act No. 50 as a result of which steps had been able to be
taken to improve the situation regarding the legal personality
of trade unions. It was now a matter for the labour courts to
resolve any disputes or cases_ in this connection. The
constituent Assembly had -approved the registration of a number
of unions. They now had the right to engage in collective
bargaining and conclude collective
agreements; these unions
represented about a third of the workers. It was also possible to
form mixed trade unions.
He raised certain expressions which were not exactly taken up
in the Act, due to the short time that had been available to examine
in depth the Committee of Experts' comments. The Experts
stated that the election of trade union officers had to be
submitted
24/37
I
for approval by the administrative authorities and it deemec this
to be a breach of Article 3 of the Convention using references to
Resolutions dating from 1952, 1972 and 1979. He had the text of
the 1958 Resolution with him and pointed out that it did not make
any reference at all to the approval of the election of trade union
officers. There was a reference to giving information about elected
officials, but there was .to wording as stated in the report of the
Committee of Experts. Likewise, according to the Experts, new
section 380(3) of the Labour Code provided for suspension for up
to three years, with loss of trade union rights, of trade union
officers who -were responsible for the dissolution of their unions.
However, he pointed out ;hat this was not administrative suspension.
but a faculty available to the Government when standards
were violated. It was then possible to have recourse to the labour
courts which would decide the question. He stated that the provision
cited by the Experts as prohibiting trade unions from taking
part in political matters had been repealed in 1990. He stressed
that Colombia respected freedom of association and trade un:on
officials had always been free to engage in politics; many were in
fact members of Congress. As for the Experts' mention of new
section 450 of the Labour Code, as amended in 1990, he noted
that before suspension or dissolution of the legal personality of a
trade union following a strike or unlawful work stoppage could
take place, the matter required a decision by the labour courts.
Thus new section 450(3) of the Code provides for the withdrawal
or suspension of legal personality, but not by the administrative
authority.
Referring to the right to strike, he was of the opinion that the
constitutional procedures and the terms of the Standing Orders of
the Conference permitted discussion of this question in some appropriate
way within the ILO. The Committee of Experts stated
that, in Colombia, strikes were prohibited not only in essential
services in the strict sense of the term, but also in a wide range of
public services which were not necessarily essential. It was true
thet the Constitution prohibited strikes in public services, but this
was because his Government believed that all public services were
essential. His Government had proposed legislation in the Constituent
Assembly which it considered to be in conformity with
Convention No. 87. This was provided for in the national Constitution
because when the authorities had to take action within their
competence, they bore in mind the fact that strikes had to be
related to economic matters of direct concern to workers. Men
tion had been made of the power vested in the Minister of Labour
to permit the dismissal of all the workers in an undertaking in
certain circumstances, one of which was if the strike had not been
resolved by arbitration. He stated that the law of the majority
should prevail in the case of a trade union. His Government also
considered it important to maintain the 1968 legislation providing
that there could be restrictions on a strike which affected the interests
of the national economy ; but even here the agreement of
the Labour Chamber of the Supreme Court had to be obtained.
Referring to the Committee of Experts' comment on the prohibition
of strikes, subject to administrative penalties, when a state
of emergency had been declared, he stressed that it was only in
such cases that such sanctions could be imposed ; that is, in very
special circumstances. In Colombia, there had been very serious
difficulties and work stoppages - not actual strikes - which had
restricted the right to work of those who did not want to take part
in the stoppages designed, for example, to paralyse transport or
interrupt communications. In these special cases the Government
had taken action, as it was permitted under the Constitution, and
the situation in Colombia necessitating such action was well
known.
As regards action against trade union officers who had intervened
or participated in an illegal strike, and the prohibition of
work stoppages which can have subversive ends, the speaker
pointed out that Article 8 of the Convention provided that ii
exercismg the rights under the Convention, workers and employers
and their respective organisations, like other persons or collectivities.
had to respect the law of the land. For these reasons, and
again repeating that there were imprécisions in the Experts' report,
the Government representative expressed his concern about
the need for a clearer definition of the right to strike and all its
implications.
Referring to Convention No. 98, he stated that the Act No. 50
permitted the formation of mixed trade unions in which public
service employees and private employees could both be members.
There had been a great deal of legislative reform in connection
with the Labour Code which had been in force for over 40 years
.and his Government was pressing on with reforms in order to
bring the legislation into line with the Conventions in question.
The Constituent Assembly, was currently meeting with a view to
ensuring that new powers were vested in Congress in this connection
; and new legislation was being drafted with a view to accomplishing
all these reforms.
24/38
The Workers' members of the United Kingdom, while thanking
the Government representative for his very detailed report,
believed that he Workers, disagreed with much of what he had
said. The Con niitee of Experts had quite rightly set out the legal
formulations necessary to bring the Colombian legi-lation into
conformity witn Conventions Nos. 87 and 98. While they had to
record some progress at the legislative level as a result of the
adoption of Act No. 50, the present Committee and the Committee
of Experts were also concerned with practice. As was noted
last year, behind this case were possibly the most horrifying facts
that would emerge in discussions in the present Committee : they
could read out a list of prominent trade union leaders who had
been killed, tortured, raped or who nad disappeared, and since
last year the situation had worsened. To read out the names provided
by the International Confederation of Free Tride Unions
and Amnesty International as well as other human rights groups,
would do disservice to the many hundreds of victims whose names
were unknown. The Government would say, as it did last year,
that this violence against trade unionists was the work of drug
dealers and criminals. This was, to some extent, true. But considerable
evidence existed showing that members of the security
forces had acquiesced, and had even been directly involved in
some of these criminal acts. The attitude of the Government towards
trade unions, with its restriction of trade union rights and
detention without trial for long periods, created an atmosphere in
which criminals and drug dealers had to feel that they were almost
acting as government agents. Trade unionists themselves, in trying
to establish recognition of basic trade union rights, were being
treated as criminals in Colombie. Unionists throughout the world
tried desperately to promote their causes peacefully : if the Government
of Colombia was to harness the peaceful cooperation of
unions, insteadof repressing them, it might have better success in
dealing with the criminal elements which pervaded the whole of
Colombian society. Trade unionists discovered that, although
massive military forces were available to break up local strikes,
the same forces were mysteriously absent when union headquarters
were being attacked and unionists being killed.
The Employers' members recalled that the Committee of Experts
was of the view that the new legislation had ed to some
progress for both Conventions Nos. 87 and 98. Since the various
points had been raised and discussed for a number of years, any
change in a positive direction was to be welcomed. But there was
still a lengthy list of continuing deficiencies which required discussion.
Of the four points raised under Convention No. 87, the first
two concerned the setting up and internal functioning of the trade
unions. The provisions mentioned were quite clearly contrary to
the Convention and were quite unnecessary and should be
changed. The Government representative, referring to a large
number of points, had repeatedly stated that the situation had
changed, but the Employers were not clear whether e.11 the points
criticised by the Experts had been rectified. Considerable clarification
was required here and they requested an exact report on
where changes had taken place and what further changes were
envisaged. They considered thai points 3 and 4 raised under Convention
No. 87 were less clear. It was a question of the often
difficult distinction between trade unions and political organisations.
There was no doubt that there could be no ban on political
activity or political meetings, but one could distingiish between
political and other organisations and it was also clear that truly
political bodies were not covered by the Convention. As regarded
the possibility of restricting strikes, the Employers indicated as
they had in 1989 that they did not share the view of the Committee
of Experts, namely that strikes could be restricted or prohibited
only in puolic services in the strict sense of the term. Nevertheless
they stated that there had to be a limit set as regarded the prohibition
of strikes, which should not be too restrictive, and the situation
in Colombia had to be changed on this point as well.
As for Convention No. 98, the Committee of Experts is satisfied
because fines had been further increased. However, the Employers
repeated that it was not necessary to specify amounts because
Article 1 and 2 of the Convention referred to "adequate"
protection and Article 4 recognised that measures had to be appropriate
to national conditions. One further point remained outstanding,
that of civil servants not being able to bargain collectively.
This restriction was so extensive that it also applied to workers
in commercial and industrial enterprises just because they were
State-owneo. The Employers believed that such wcrkers should
not be deprived of the right to bargain collectively. Since it appeared
that the Government representative had stated that certain
restrictions no longer existed, the Employers' members felt that
his statement should be included in a detailed report so that the
facts could be verified.
As there were still considerable differences, particularly concerning
Convention No. 87, there was a need for rapid change and
they considered that the present Committee should insist on a
change in the near future in both the legislation and practice.
A Workers' member of Colombia thanked the ILO and all
those who had expressed their concern and distress at the terrible
situation faced by workers in Colcmbia. Referring to the statement
made by the Government representative, he maintained that
there was improper interference by :he State in every aspect of the
functioning of trade unions and noi only in the Confederation to
which he belonged. A virtual war was being waged against the
trade union movement in Colombia and this arose in connection
with the most recent legislation mentioned by the Committee of
Experts in its report. He stated thdt the trade union movement
had, for a long time, been making requests and calling for democratic
reform of the labour legislation, but had constantly met
resistance from the Government and employers. With reference
to the Government representative's statement that reforms were
being carried out in collaboration with the workers and employers,
he observed that although the workers had hoped for proper
proposals, the Government had produced reactionary provisions
that were now embodied in Act No. 50 of 1990. In his opinion, the
Government was trying to convince world public opinion that the
amendments favoured workers whereas the legislation had really
been brought into line with the requirements of the World Bank
and International Monetary Fund. ITiere had been some progress
compared to 1989 and 1990 but he noted that Conventions Nos. 87
and 98 had been law in Colombia since 1976 and, despite all the
legislation passed over the last fifteen years, they were still not
properly applied. The Government representative had stated that
strikes were not prohibited, but rather work stoppages. However,
the four trade union confederation; had organised a strike on 14
November 1990 aimed exclusively at defending workers' interests
and this peaceful action had resulted in government measures including
imprisonment for three years of those who called the
strike, confiscation of trade union funds and the censorship of
union radio and television. The mili.ary forces had been deployed
as an intimidation measure and the Government had orchestrated
a disinformation campaign alleging that the stoppage had been a
failure. In concluding, he considered that the work of the Committee
of Experts in this case had to be continued and suggested
that a direct contacts mission be sent once again to the country
with a view to establishing clearly how Act no. 50 of 1990 was
going to be applied in practice.
Another Workers' member of Colombia, having listened to the
Government representative's staterrent, informed the Committee
that the situation of Colombian workers could not be worse. The
new labour legislation not only breached the fundamental principles
of the ILO, but was aimed at destroying the Colombian trade
union movement. He based this remark on the following: rather
than providing for the " elimination " of obstacles to the formation
of unions, the Act allowed precarious employment contracts so
that it was impossible for workers tc join a union because of their
temporary employment situation. Workers knew that if they
joined a union, they ran the risk that their contracts would not be
renewed. With this institutionalisation of temporary employment
(the law had previously prohibited contracts of less than one year)
it was impossible in practice for workers to belong to unions and
to conclude collective agreements. The new Act also introduced
changes concerning strike formalities and he pointed out that it
was now very difficult for workers to vote in favour of a strike
because the decision had to be take r at an enterprise-level meeting
which could be attended by workers who were not members of
the union. He added that the Government was propagating the
fallacious idea that it did not prohibit strikes, only stoppages, but
the stoppage of 14 November 1990, already referred, to was precisely
a strike to protest against the introduction of this new Act
on which the workers had not at all been consulted. They had
been allowed to attend meetings of the committees discussing the
draft provisions but had not been ab!e to express their views, even
though other parties had been hearc. The stoppage itself had not
been subversive and the confederations involved had publicly appealed
to guerilla groups not to intervene in any way ; nevertheless,
it was declared illegal before it started and disciplinary action
was taken throughout Colombia. Another deterioration introduced
by the new Act was the lowering of the minimum age for
admission to employment from 14 to 12 years, which could not be
called progress. He called for an ILO mission to visit Colombia to
assess the real situation. Lastly, he referred to a report of the
Committee oil Freedom of Association which called on the authorities
to take steps to ensure the reinstatement of a group of
workers who had been unjustifiably dismissed in the textiles sector.
To date there had been no information from the Government
about any reinstatements and this showed that, while the Govern- '
ment said one thing in order to impress public opinion, what was
actually occurring in the country was quite different.
Another Workers' member of Colombia pointed out that this
decade had been one of the most difficult in the history of Colombian
workers. The Government representative had not referred
correctly to the facts or to the policies of structural adjustment
which were, in reality, not decided in Colombia, but by the World
Bank and the International Monetary Fund in Washington. He
believed that this neo-liberalism imposed by a cruel developmental
policy would not hesitate in destroying the democratic basis of
the union movement in the interests of implementing a new economic
order in Latin America. It was no accident that today's leaders
in Latin America had received instructions on this new economic
order which was detrimental to social justice. In Colombia,
these structural and economic policies were affecting the poorest
and most marginalised sectors of the population. The new Act
merely complied with these measures; the future was therefore
bleak. He stressed that efforts had to be continued to combat the
repression of the interests of Colombian workers, which were the
interests of Latin American, Third World and all workers in general.
The Government representative of Colombia, referring to the
statements made by members of the Colombian trade union confederations,
supported their proposal that an ILO mission go to
Colombia very shortly to study on the spot the various issues
raised here. In that way his Government could help the ILO learn
more about the situation in the country. Referring to the Workers'
members statement, he firstly rejected most strongly the remark
that the agents of terrorism and drug traffickers were acting virtually
as government agents. Their acts had to be condemned, and
none of them were in any way attributable to or associated with
the Government. In carrying out its mandate as elected representatives
of the people, his Government had done everything possible
to combat these subversive acts. Secondly, he rejected the
insinuation that a foreign power should interfere in the internal
affairs of a country. There had been interventions which were
already forgotten in Latin America. Relations with the United
States were excellent. He added that he had not broached the
problem of the long list of trade unionists who had been subject to
attack in the country because that was not covered by the report
of the Committee of Experts. He acknowledged, to his distress.
that it was not only trade unionists who were the victims but also
presidential candidates, judges, magistrates, police officers, soldiers,
entrepreneurs and innocent citizens. All Colombians were
concerned over the painful situation in the country and unionists
knew, better than anyone else, that it was necessary to put a stop
to these subversive attacks. Referring to the comments of the
Employers' members, the Government representative stated that
he had taken careful note and that the Government would be
taking the necessary steps to remedy the situation. He repeated
for clarity that the new Act had abolished suspension by administrative
authority of the legal personality of trade unions ; everything
connected with withdrawal or suspension of legal personality
was now a matter for the courts. In addition, he repeated that
section 450 of the new Act had been misquoted. Lastly, he recalled
his wish that the ILO carefully study all aspects of the right
to strike and he repeated that a mission should visit the country to
note the progress achieved, progress which had been recognised
to some extent by the trade union leaders who had spoken earlier.
The Workers' members stated that to arrive at a better situation,
two factors were needed : firstly legislation in full conformity
with the principles and obligations of the Conventions, and secondly
the practical application of their principles and obligations.
On the first point the report of the Committee of Experts was
clear. Although it noted certain progress with satisfaction, it recalled
a series of major questions which had not been resolved. As
for the practical application the Committee had heard the interventions
of the Workers' members. It was also known that the
Committee on Freedom of Association was seized of several complaints
and had called on the Government to take measures to end
the violence affecting a great number of trade unionists and to
strengthen the protection of workers and trade union leaders
against acts of anti-union discrimination. On all these points, the
statement of the Government representative was regrettable and
worrying. Regrettable in form, because although there had been
special paragraphs on this case for two consecutive years, there
was no written reply to the comments made and only an oral
statement which could not be examined in depth. Worrying in
content, because the Government was well aware of the views of
the Committee of Experts and the present Committee, but only
gave assurances of one day arriving at a better situation. They
believed that the present Committee should insist on the Government
taking measures not only to reply to the questions raised,
but to change the legislation to bring it into full conformity with
the Conventions. The Workers' members wanted to continue dialogue
but the maximum pressure had to be brought to bear for
this. They had initially considered proposing that this case be
mentioned in the present Committee's report as one of continued
failure to implement, but the Experts had noted some progress.
They stressed that they would have proposed for the third time a
special paragraph for Colombia, but in view of the fact that the
Government had asked for a direct contacts mission and in the
24/39
hope that this mission would take place shortly tht would not do
so.
The Employers' members noted from the discussion that the
situation in Colombia was worrying and had gone beyond the
scope of the Conventions. Nevertheless, as conc,rned the ques-.
tions to be dealt with here, some things were very lear and had to
be changed. They repeated that every necessary step should be
taken towards this. As for the suggestion of a direct contacts mission.
they recalled that such a mission had taken place in l988.
This was not always the way to settle everythir..g, but they assumed
that goodwill was present. Last year, the present Committee's
conclusions reflected the Government's request for technical
assistance from the ILO. This could be done once again, but they
expressed the wish that the mission take place as ,oon as possible
and that corresponding results be achieved.
The Employers' member of Algeria added h:.s deep concern
over the situation which was seriously deteriorating in Colombia
as regarded respect for the most fundamental standards of the
ILO, namely Conventions Nos. 87, 98 and those linked to nondiscrimination.
The case being discussed here wa:; not new to the
present Committee's members and he wished to stress that both
workers' and employers' organisations would be tble to enjoy the
democratic rights flowing from Conventions Nos. 87 and 98. He
had seen in his own country the ease with which the strugg:e for
democratic rights could be transformed by the powers that be into
a "pseudo-subversive" struggle. He agreed with the Workers'
members that, morally, the Committee had to maintain maximum
pressure despite the progress noted in Colombia. The direct contacts
mission should take place, but he did not wish to see the case
being discussed over the years to come. The situation was serious
and there had to be respect for the responsibilities and principles
accepted by virtue of the Constitution of the ILO.
The Committee noted the information supplied by the Gcvernment
as well as the discussion that had taken place and submitted
them to the Committee of Experts. It took note of the request
addressed to the ILO regarding the sending of a direct co::itacts
mission and hoped that it would take place very shortly. The
Committee noted with interest certain legislative improvements
which had takicn place in the application of Conventions Nos. 87
and 98 since last year. However, in view of tt.e deep concern
which it had expressed for a number of years in connection with
the numerous and serious deficiencies that cont' nued to exist in
the law and in practice as regarded the applicatio::1 of the Conventions,
the Conmittee expressed the firm hope that the Government
would be in a position to communicate to the supervisory
bodies of the ILO as rapidly as possible specific information on
the measures taken or envisaged so,as to bring tt.e legislation and
practice into fall conformity with the requirements of these Conventions.
In view of the seriousness of the trade union situation
which was confirmed by the Committee on Freedom of Association
when it examined pending cases, the Committee insisted that
the Government indicate that real and substantial progress had
been made in its next report.
24/40
Document No. 248
ILC, 78th Session, 1991, Report of the Committee on the
Application of Standards, pp. 24/42-24/44 (Dominican
Republic)
-™j Provisional Record
Seventy-eighth Session, Geneva, 1991
Third Item on the Agenda : Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
PART ONE : General Report 2
PART TWO : Observations and Information concerning Particular Countries 24
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 24
A. General Observations and Information concerning Certain Countries 24
B. Observations and Information on the Application of Conventions 29
C. Table of Detailed Reports on Ratified Conventions 91
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 92
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 93
A. General Observations and Information concerning Certain Territories 93
B. Table of Detailed Reports on the Application of Conventions (Non-Metropolitan Territories) 94
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 95
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) 97
Reports received by 22 June 1991 relating to the Paid Educational Leave Convention, 1974
(No. 140), and Recommendation, 1974 (No. 148), and the Human Resources Development Convention,
1975 (No. 142), and Recommendation, 1975 (No. 150). 97
Index by Countries to Observations and Information Contained in the Report 98
24/1
24/42
Dominican Republic (ratification: 1956). The Government
communicated the following information:
l. Trade union rights in free trade zones
As concerns the trade union rights of workers in free trade
zones, the Government has provided a response, dated 19 March
1991, to the direct request of the Committee of Experts. Tw enty
enterprise-level unions in free trade zones are currently registered
by the Trade Union Registmtion Section of the Secretary of State
for Labour. All requests for information concerning free trade
zones' trade unions' conform:ty with the law will, without delay,
be complied with.
With regard to the low rate of unionisation of workers employed
in free trade zones, this is due, fundamentally, to the fact that more
than 90 per cent of the personnel of enterprises situated in these
zones are women from rural areas working for the first time.
Moreover, the draft Labour Code (which is currently being
discussed by employers and workers before being submitted to the
National Congress in conformity with the provisions of Decree No.
404/90) contains provisions aimed at overcoming all hesitation by
administrative labour authorities to register these unions. In this
sense, article 380 of the draft provides that "if within 60 days, the
Secretary of State for Labour does not proceed to registration, the
workers may give notice that such a decision shall be made and if it is
not taken within 30 days, the union will be deemed to be registered
with full legal effect attached with such registration".
2. Workers in agricultural enterprises employing no more than ten
workers
Section 265 of the current Labour Code will be repealed wher.
the draft of amendments to the Labour Code is adopted. The:
draft provides that the Code will no longer exclude agricultura:.
enterprises which do not employ more than ten workers on f1
continuous and permanent basis. Henceforth, agr:cultural enter ..
prises, agro-industries, farming and forestry which employ, in a
continuous and permanent manner, ten or more v..orkers, will be
regulated by their provisions of the new Code (section 285 of the
draft Labour Code).
3. Public officials and other workers and technicians in the public
sector
Section 13 of Law No. 520 of 1920 was repealed by the Consti •
tution of the Republic which recognised freedom of association
and estab!ished that international conventions rati'.ied by the Dominican
Republic would be internally binding standards. These
provisions are recent, superseding earlier law. According to article
46 of the Constitution.of 1966: "all laws, decrees, decisions,
regulations and acts contrary to the present Constitution are null
and void".
In addition the Law on Public Function and Administrativ1:
Career, approved by the Chamber of Deputies ·on 22 January 199 l
and by the Senate of the Republic on 8 May 1991. provides for th,:
right of organisaton of agents of the public service (section 30 of
the Law).
Law No. 56 of 24 November 1965, and Law No. 5915 of 1962,
will be repealed with the approval of the draft of amendments of
the Labour Code which, as has already been indicated, is currently
the subject of discussions between employers and workers, before
its submission to the National Congress (section 736 of th
draft Labour Code).
Law No. 2059 of 22 July 1949 neither refers to freedom cf
association nor restricts it. Moreover, in the draft of amendments
to the Labour Code, it is proposed to partially amend the law to
the extent that employees of autonomous institution of State of a
commercial or industrial character or in the transport sector will
be regulated by the labour law, including provisions concerning
the right to organise, to bargain collectively and to strike (sections
2 and 737 of the draft Labour Code).
In conclusion, in this area, the Law on Public Function and
Administrative career, which came into effect with approval of the
national Congress, confirms the right of trade union organisation
of agents of the public function and repeals all related provisions
in Law No. 2059 of 22 July 1949.
4. Restrictions on the right to strike
The draft of the new Labour Code takes into account the recommendations
of the Committee of Experts: section 371 of the
Labour Code is modified and section 408 of the draft excludes
from the definition of "permanent public services" transport, the
retailing of foodstuffs in markets, sanitary services and the sale of
transport fuel. This exclusion means that strikes and work stoppages
in these services will be authorised when the new Code is
approved.
Similarly, section 373 of the current Code (which refers to sympathy
and political strikes) will be suppressed by section 410 of the
draft. Law No. 5915 of 1962 which forbids solidarity strikes will be
expressly repealed by section 736 of the draft of the new Labour
Code.
Regarding the vote required by section 374 of the current
Labour Code to declare a strike, section 411 of the draft of amendments
to the Labour Code reduces to 51 per cent the majority
needed to call a strike.
In the draft of amendments to the Lsbour Code, it is anticipated
that the arbitration procedure will be deemed activated from
the date of notification of the judicial decision issued upon resumption
of work, this resumption shall take place within the five
days which follow the date of the above-mentioned judicial decision
(sections 414 and 688 of the new Labour Code).
As concerns the conclusion of the Committee on Freedom of
Association, in Case No. 1549, it should be noted that in cases of
strikes touching upon public services, the workers currently have
the right to resort to the National Wages Committee if the subject
is within the competence of this Committee (section 370 of the
Labour Code) ; that arbitration is regulated by section 636 and
following of the current Labour Code. In consequence, the current
Code includes a scheme which places in impartial hands, the
regulation conflict involving economic and social order.
In addition, a Government representative, the Secretary of
State for Labour, referred to the quesion of trade union rights
of workers in free trade zones and Convention No. 87. As was
pointed out in his Government's written communication, 20 enterprise-
level unions were currently registered for such zones and
the low rate of unionism could be due to the fact that most workers
in these zones were peasant women from rural areas working
for the first time. From October 1990 to May 1991, all unions
requesting registration had it granted within the ten days allotted
under the current Labour Code. The largest number of free
trade zone unions was in the Province cf San Pedro di Marcores,
which had a long tradition of unionism. He repeated that the
draft Labour Code contained provisions aimed at overcoming
any reluctance by the administrative labour authorities to register
unions in these zones. On the question of the right to organise of
workers in agricultural enterprises employing no more than ten
workers and public officials and other workers in the public sector,
he reiterated that the new draft Latour Code would no longer
exclude agricultural enterprises from its scope and that the
new Act on the Public Service and Administrative Careers (promulgated
on 28 May 1991) provided fo- the right to organise of
public servants. On this latter point, with the approval of the
draft amendments to the Labour Code, currently being discussed,
Act No. 56 of 1965 and Act No. 5915 of 1962 would be
repealed; he stated that Act No. 2059 of 1949 referred neither to
freedom of association nor restricted i:. In any case, the draft
amendments to the Labour Code proposed partially to amend
that Act so that the Labour Code would apply to the employees
involved. Regarding restrictions on the right to strike he again
referred to his Government's written communication, stressing
that the new Labour Code took into a;count the recommendations
of the Committee of Experts so as to exclude from the definition
of "permanent public services" transport, the retailing of
foodstuffs in markets, health services End the sale of transport
fuel. Likewise, the new Labour Code would expressly repeal the
current bans on sympathy, political and solidarity strikes. The
new draft would reduce to 51 per cent, .he majority vote needed
for the calling of a strike. The new Code provided that arbitration
did apply from the notification of the resumption of work
which was to take place within five days after that notice had
been issued. He repeated that the current Labour Code provided
a formula for placing the settlement of economic and social disputes
in impartial hands as arbitration raquired : one arbiter was
designated by the workers, one by the employers and a third was
appointed jointly by the parties.
Referring to Articles 1 and 2 of Convention No. 98 on the need
to strengthen measures protecting workers against anti-union discrimination
and acts of interference, the Government representative
repeated the written information communited by his Government
and set out in document D.4 stressing that the national
Constitution expressly protected freedom of association by stating
that "trade union organisation is free". In addition, the current
Labour Code contained a number of provisions protecting trade
union autonomy against interference by both employers and the
public authorities. The new draft Labour Code would reinforce
trade union rights by introducing trade union immunity to protect
those forming a union, as well as union leaders; in the case of a
dismissal, the employer would have to obtain the prior approval of
the Labour Tribunal which would also have to examine whether
there was a serious reason for such a dismissal or whether it was a
reprisal based on the trade union activities of the official. The
draft Labour Code would also substantially increase penalties for
infringements of the Code. He explained that the question of dismissal
of union leaders in free trade zones raised by the Independent
Workers' Confederation before the.Committee of Experts
and the Committee on Freedom of Association had been taken by
the unions concerned to the courts. In any case the draft Labour
Code Would give absolute protection against dismissal on account
of trade union activities in free trade zones. Lastly, the Government
representative referred to his comments under Convention
No. 87 concerning the exclusion of workers in agricultural enterprises
employing not more than ten persons from the scope of the
Labour Code.
The Workers' members noted the Government's written communication
and the comments made by the Secretary of State for
Labour describing a change in the situation concerning trade
union rights in'free trade zones. However, this information still
had to be examined by the Committee of Experts. For the other
points, the key element was the new draft Labour Code which,
according to the Government, would take account of the comments
made by the Experts. For Convention No. 87, these comments
concerned limitations on trade union rights in agricultural
enterprises employing no more than ten workers, major restrictions
on the right to organise of public servants and on the right to
strike in essential services. For Convention No. 98, the Outstanding
comments concerned protection against acts of anti-union discrimination.
One could talk of promised progress which had not
yet taken place. The Workers' members believed that the conclusions
should stress more precisely that the new legislation genuinely
should respect all the obligations flowing from these two
Conventions, as well as the conclusions and recommendations of
the Committee on Freedom of Association in Case No. 1549 concerning
strikes in essential services. All the information should be
sent, including the- text of the new legislation once adopted. In
that way the Committee of Experts and the present Committee
would be in a position to re-examine the situation next year.
The Employers' members, referring to Convention No. 87,
pointed out that there were four different problems : firstly, on the
question of whether freedom of association was being unreasonably
restricted in free trade zones ; the Committee of Experts felt
that there were violations at least as far as small trade union
organisations were concerned. The Government representative
stated that unionisation might depend on the fact that the workers
were mainly women from rural areas, but there were also other
reasons for such a situation arising. According to the Government,
the new Labour Code's provisions concerning registration
of trade unions would considerably change and improve the situation,
providing either for automatic recognition or the refusal to
allow the registration of a union with the reasons being given.
Secondly, a similar situation existed regarding freedom of association
in the agricultural sector where, once against, the new Labour
Code was supposed to bring about considerable change by abolishing
the current restrictions. Thirdly, the same would happen to
restrictions which have existed up to now regarding the trade
union rights of public servants. They believed that these three
problem areas would therefore be removed. Fourthly, as regarded
restrictions on the right to strike, the Experts had given their
classic definition of the right to strike, that is, that restrictions on
the right to strike could be allowed in essential services in the
strict sense of the term as understood by the Committee of Experts.
The Employers' members did not necessarily think that this
was the case as contemplated by the Convention, but this question
did not need to be considered in greater depth here because the
Government had stated that the legal situation was going to be
changed. Of course, if the Government followed the wishes expressed
by the Committee of Experts, no one would criticise it ;
but they were of the view that essential services in the strict sense
of the term could not be defined as only concerning risks of life
and limb or the provision of water and electricity. Other things
could be covered by essential services as the Employers had already
recalled in earlier discussions. For example, the Experts did
not believe that education was an essential service which the Employers
found difficult to understand given its fundamental significance.
There was also the definition given in Article 31 of the
Vienna Convention on the Law of Treaties. Since the Government
had declared that it was going to change the situation, the
Employers' members would not criticise it for following the
Experts' recommendations.
24/43
As for Convention No. 98, the Employers' members noted the
Government reply that it wanted to, and was going to, amend its
legislation in order to bring it into line with this Convention. Thus
a long discussion on this question was not necessary. Nevertheless,
they noted that the Convention talked of" adequate" protection
and implementation "in accordance with national Jaw", and
that pecific concrete measures were not specified. There were
many ways cf applying this Convention and it was quite correct to
refer to the ILO Constitution under which States Members.undertook
:o apply- all the Conventions they ratifiec. and to adopt the
necessary measures for their implementation. A member State
had a certain room to manoeuvre in this respect and the supervisory
bodies could determine the validity of the measures chosen.
Since the Government had announced basic :.egislative reforms
along the lines wished by the Committee of Experts, they did not
wish to go further into this question; but they hoped that the
conclusions would take their view into account.
TI1e Government member of Germany agreed in princble with
the proposals made by the Workers' memhrs but w{mdered
whether, firstly, specific progress had indeed been achieved in
free trade zones and in working conditions there. Secondly, he
wondered w:.1ether a reference in the present Committee's conclusions
to the need to implement the recommendations of the Committee
on Freedom of Association would be outside this Committee's
mandate. As far as this particular case wai. concerned, he did
not have any reservations really, although he pointed out that the
fact that his Government was prepared to follow the Committee
of Experts should not be interpreted as meaning that all governments
who, at the present Committee, reached a consensus supporting
the conclusions based their interpretation on the Committee
of Experts.
The Government member of Argentina made the point that
essential services were ,hose which could, because of their duration,
affect the life, personal safety and health of the population.
l'\o one in particular was identified, but rather the concept; to try
to include education or any other service therein was not the jo':l
of the present Committee. The Committee had to adhere to the
clear concept as defined by the ILO.
The Workers' member of the Dominican Republic pointed out
with respect to free trade zones that these areas had grown tremendously
in his country: there were now three industrial parks
having more than 350 enterprises employing 120,000 workers.
This was undoubtedly a means of minimising unemploymer.t
which stood at around 30 per cent in the Dominican Republic. Bi:t
the working conditions in some enterprises in these zones were
totally inhuman where the treatment was like that meted out in
jails. The Dominican Republic Trade Union Confederation
(CNTD), and other organisations, had been involved in a fierce
struggle to organise as many workers as possible and to negotiate
collective bargaining agreements for better working conditions.
To date their efforts had not been successful. Between October
1990 and April 1991, the Ministry of Labour had recognised various
trade ur..ions in the free trade zones, five of these belonging to
the CNDT. In undertakings like Westinghouse, Electric Corporation.
Undergarment Fashion, Silvanya and others, once the existence
of a union was known, there were dismissals of bo:h union
members and officials. The companies in these zones simply did
not tolerate trade unions. In the recent past, th, labour authorities
had assisted these undertakings, which were mainly multinationals.
The Workers' member of the United Kingdom found that arguments
were intruding into this discussion which did not affect
the case whatsoever. The Government representative had indicated
his intentions, and the speaker did not think that any statement
made by the: Employers about the right to strike - which were not
shared by the Workers - should be included ir. the conclusions of
the present Committee. He also did not agree with the suggestion
of the Government member of Germany that no reference should
be made tc the Committee on Freedom of Associatio:i in the
conclusions. The speaker could refer to conclusions reached last
year where ·,eference was indeed made to the Committee on Freedom
of Association. He did not believe that new principles should
intrude into the discussion of the case where the Government
representative had already indicated his willingness to conform
with the recommendations made by the Committee of Experts.
The Employers' member of the United States noted that refer-.
ence had been made to several United States rJultinationals operating
in export processing zones in the Dominican Rept:.blic and
informed the present Committee that the United States Government,
as part of its obligations under the 1988 Trade Act, had
conducted in 1990 a series of investigations on the practices of US
multinationals in a variety of export processing zones around the
world, including the Dominican Republic. The conclusions of
those studies were basically that US multinationals had exemplary
practices as regarded the basic h,uman rights standards of the ILO,
24/44
that is, freedom of association, the right to organise. forced
labour, occupational safety and health and child labour.
The Corrmittee took note of the written and oral information
provided by the Governn::ent and of the discussion which had
taken place in the presen: Committee. It noted t'.1at in 1985 a
direct contacts mission had prepared, in agreement with the Government,
draft amendments in order to remove the serious divergencies
existing between the legislation and the provisions of Conventions
Nos. 87 and 98 in order to give effect to the comments
made by the Committee of Experts. The Committee also noted
that a new direct contacts mission had recently visited the Dominican
Republic. It observed that several complaints concerning violations
of freedom of association pointing to anti-union discrimination
had been recently examined by the Committee on Freedom
of Association. The Committee noted that the new Law on the
Public Service, promulgated in May 1991, recognised fae right of
freedom of association for public servants. In addition, it noted
with interest the assurances provided by the Governn::ent representative,
according to which a draft Labour Code had been discussed
with the social partners at a seminar held under the auspices
of the ILO, in order to satisfy the comments of the Committee
of Experts and to ensure full implementation of the provisions of
these Conventions. The Committee trusted that the good provisions
mentioned by the Government would come into force very
shortly and would make it possible for the Committee of Experts
and the present Committee to note real progress I'-ext year.
Document No. 249
ILC, 78th Session, 1991, Report of the Committee on the
Application of Standards, pp. 24/47-24/48 (Guatemala)
-™j Provisional Record
Seventy-eighth Session, Geneva, 1991
Third Item on the Agenda : Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
PART ONE : General Report 2
PART TWO : Observations and Information concerning Particular Countries 24
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 24
A. General Observations and Information concerning Certain Countries 24
B. Observations and Information on the Application of Conventions 29
C. Table of Detailed Reports on Ratified Conventions 91
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 92
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 93
A. General Observations and Information concerning Certain Territories 93
B. Table of Detailed Reports on the Application of Conventions (Non-Metropolitan Territories) 94
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 95
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) 97
Reports received by 22 June 1991 relating to the Paid Educational Leave Convention, 1974
(No. 140), and Recommendation, 1974 (No. 148), and the Human Resources Development Convention,
1975 (No. 142), and Recommendation, 1975 (No. 150). 97
Index by Countries to Observations and Information Contained in the Report 98
24/1
Guatemala (ratification: 1952). A Government representative
of Guatemala stated that his Government received with interest
the observation made by the Committee of Experts on the application
of Convention No. 87. He no-,ed, however, that certain
cla1;fications were necessary in the following general categories:
(a) questions which are considered to be resolved b) tl1c new
Constitution of the Republic leaving only the need to d.:ronte
these provisions by the creation of new laws as requestrc! by 'he
Committee of Experts; (b) the provisions which were already expressly
repealed; and (c) a specific case where the Constitution is
in contradiction wjth the Convention. The speaker pointed oul
that efforts had already been made, with the assistance of tl:e
ILO, to update the consolidated labour legislation and thus lwing
it into conformity with 'international labour standards. As a result
of these efforts, the previous Government presented the Congress
of the Republic with a draft of a suhstantive and a prncedural
Labour Code, as well as a basic Labour and Social Securitv Act.
However,-the legislative process discontinued due to the fort thnt
var{ous sectors of soc-i(,;ty had ddar1;.;d th1,;ms\:lvc,; uc,uin'!:.\ thc,;c,;
draft texts. Nevertheless. the new Government lwd hC!!Ui1 mid
implemented a Social Covenant as a general expression of tripartism,
never before seen in the country. W ithin the framework of
this Social Covenant, the Government was taking steps towards
the institutionalisation and harmonisation of the count,-y' s labour
legislation with international lahour Conv.::ntions. The speaker
pointed out that. taking into consideration the political circc1rnstances
which complicated the process of promu.lgation of a new
labour legislation. the Minister of Labour and Welfare was promoting,
on the basis of tripartite consultations, the apprornl of a
certain number of transitional reform measures to the Lahour
Code. This would be done in a way so as to incorporate international
labour standards in the law. In this way, these amendment,.
together with the draft codes based upon the tripartite consultation
process under the Social Covenant. were part of a global
strategy for improving the legislation. The speaker gave assurances
that his Government would send all tl1e documentation pertinent
to this case to the Committee of Experts and the :.VIinistcr o,
Labour and Welfare would see to it that the discrepcncics which
had been pointed out and which were not contrary to ,he Ccn,titution
of the Republic would be eliminated by the labour kisi.1-
1ion once the Social Covenant was concluded. The Covcrnmcnt
representative recalled that the present Labour Code. which is
now being revised, dated back to 1948 and the Constitution of the
Republic entered into force in January of 1986. Many of the observations
made by the Committee of Experts would be rcsohcd hy
the Constitution. He concluded by ,tating thal ILO assista,1cc
would be welcome to conclude the cuirent reform of the lahour
law in the most technical and efficient way possible. ':his "·;si,•
lance was being discussed with the ILO.
The Workers' members noted the information prov;ded by !he
Government concerning the changes made since the last time Lh,s
case was discussed. They recalled the discrepancies nmcd in the
Committee of Experts' report between the legislation &nd the previsions
of the Convention. In this respect, they noted that there
were six essential problems: (1) the strict supervision of trade
union act1vities by the Government; (2) the dissolution of trade
unions that have taken part ;n matters conccrnng icctorul or
party politics; {3) the limitation on the eligibility for trade union
office to Guatemalan nationals only: (4) the rcquire1,1cnt oi a
two-thirds majority vote for the calling of a strike; (5) the prohihition
of strikes by agricultural workers at harvest time by wor!ccrs
in enterprises or services in which the Government considercJ
that a suspension of their work would seriously affert the national
economy (they recalled in this regard that the Committc of "Experts
had dt;termined that the right to ,trike could only be limited
for essential services, i.e. those senices in which a strike would
endanger the life, personal safety or health of whole oi part of the
population); and (6) the heavy prison sentences for those who
carry out acts intended to paralyse or distub the functioning of
enterprises contributing to the development of Ire national economy
with a view to jeopardising national production. Thc;y noted
that the Government representative's statement hr.d demomtrated
that more progress wa, made than reflected in the Committee
of Experts' report as apparently the draft Labour Code was presently
being discussed in the legislature. Finally. they requestcci a
clarification from the Government representative c01ce·rning the
pursuance of tripartite consultations to resolve these problems.
The Employers' members recalled that this ca,e had been cti,cussed
several times in the early 1980s and that three years had
passed since it was last discussed. They generally associateci themselves
with the comments made by the Workers' members, but
declared their reservation concerning the right to strike as they
were of the opinion that the details concerning this right could not
be deduced from Convention No. 87. In their opinion, thi, case
also demostrated that the formula defining essential services was
very narrow and did not take into consideration the particularities
of a given case. They wondered whether, in a country which depends
on agricultural products, it would not be u,eful to consider
harvesting as an essential service. In spite of this particular point,
they note that there were still a number of contradictions between
the legislation and the provisions of the Convention. They notf'd
24/6,7
the Government representative's indication that amendments to
the legislation and in particular to the Labour Code were being
elaborated. They recommended that the Government be asked to
accelerate tr.is process and to provide these texts as soon as possible
i,o that the Committee of Experts could supervise the application
of the Convention.
Th.:: Government representative of Guatemala welco□ed the
interest reflected in this type of concrete questioning. He pointed
out that. as concerned the strict supervision of trade union activities
by the Government. the participation in :Jolitical parties of
trade union leaders, the problems concerning eligibility of nonnationals
for trade union office. the majority necessary to call a
strike, the prohibition of strikes by agricultural workers and strike
in essential services - these elements and circumstances w,ere t2-ken
into account in the Constitution of 1986. T:1e restrictive standards
bearing upon freedom of association had been repe,aled or
derogated by this later law. The Government would mak,e an effort
to ensure that the process followed for reviewing the legislation
would bring the country standards into full conformity with
the Convention. The Government respected certain trade union
rights which were discretionary, such as the election of trade
union officers. As concerned the sanctions against those who·paralyse
the national economy, he pointed out that the Constitution
was very clear about the types of conduct which were illegal and
the minimum rights guaranteed to the worker, including the right
to strike. As regards the question concerning whether an agricultural
country, such as Guatemala, could restric': the right to strike
of agricultural workers, he pointed out that his country adopted
the universa]y recognised definition of the international bodies on
essential services which only limited the right when it couk. endanger
the heal:h, safety and welfare of the population. He reitered
that in his country there was the conviction that the legislation
should be changed so as to be in compliance with international
labour Comentions, but that these changes should be made in a
spirit of tripartism and consensus in conformity with the wellbeing
of all sectors of the country.
The Workers' members thanked the Government for the clarifications
given to the questions raised and requested that the new
legislation be sent to the Office for review as :;oon as possible.
The Committee took note of the detailed information wmmunicated
by the Government representative ,,nd the discussion
which had taken place in the Committee. It recalled that the Committee
of Experts had been asking the Government for a number
of years to remedy the serious divergencies which exist between
national lav, and practice and the Convention. Taking note that
the draft Labour Code, which was to take into account the observations
made by the Committee of Experts, was in the process of
being adopted by the Congress of the Republic, the Co:nmittee
expressed the firm hope that the Government would report in its
next report on the concrete measures taken to bring its law and
practice into conformity with the requirements of the Convention
which it had ratified almost 40 years ago.
24/48
Document No. 250
ILC, 78th Session, 1991, Report of the Committee on the
Application of Standards, pp. 24/50-24/51 (Nigeria)
-™j Provisional Record
Seventy-eighth Session, Geneva, 1991
Third Item on the Agenda : Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
PART ONE : General Report 2
PART TWO : Observations and Information concerning Particular Countries 24
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 24
A. General Observations and Information concerning Certain Countries 24
B. Observations and Information on the Application of Conventions 29
C. Table of Detailed Reports on Ratified Conventions 91
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 92
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 93
A. General Observations and Information concerning Certain Territories 93
B. Table of Detailed Reports on the Application of Conventions (Non-Metropolitan Territories) 94
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 95
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) 97
Reports received by 22 June 1991 relating to the Paid Educational Leave Convention, 1974
(No. 140), and Recommendation, 1974 (No. 148), and the Human Resources Development Convention,
1975 (No. 142), and Recommendation, 1975 (No. 150). 97
Index by Countries to Observations and Information Contained in the Report 98
24/1
Nigeria (ra:ificaticin: 1960). A Government rnresentativ stated.
with reference to the first point raised by the Experts concerning
a ,ingle c,:ntral trade union established by law under which
certain registc:red union, were affiliated to th;: Nigerian Labour
Congrss (LC). that the four centrai labour organisations had of
their own volition decided to merge to form the NLC and. by
vinue of the T.-ade Union Decree of 1978. hi, Government had
metely formalised the organisation which the workers had
established
themselves. Ti1e "11LC was currently re;tructuring
itself. from its present 4-1 industrial unions, to 22 industrial unions
and he stressed that the Government had no hand in the present
r(:structuring
exercise. He bdicved that the Workers' member of
l\igeriJ present in the present Committee was in a better position to
speak on that partiC'Jlar issue.
Secondly, regarding the denial of trade union rights of certain
categories of workers, h.: pointed out tha, in the local condit;ons
thi, wa, based on the security nature of the ,erviccs whid1 the
affected work.,:rs were providing: they were employed in services
strategic to the Nigerian economy. In any event. he gave the assurance
that ·.his aspect of the labour kgislation was currenll y
under review by the National Labour Advisory Council.
Thirdly. regarding the :,rm,d powers of the Rgistrar to
rnpervi,
e the accounts of trace unions. he stated ti1a: the l.11\·
mcrelv requested the unions to submit their audited accounb LO the
Registrar
once a year. By meam of the compul•;ory check-off
system. the law empowered employers to deduct union dues fom
wo,kers
· wages at ·:he so:irce: these deducted amounts were paid
into the accounts n[ the appropriate union. Therefore. the J.cg
,trnr did not look into the details of how the mo,1e) was spent
becalls.: the accounts had to be audited by qualified re:gistered
accullntant5.
The measure was merely to ensure that trade
union accounts
were in fact audited. The Registrar h«d t1e duty to
remind unions to submit their accounts to auditor5 of their choice • f
th.::y did not do so of their own vollition. The spcal.cr noted,
hol\t:ve •. that ;rny worker who so wished could opt out of the
compul,;ory chcc!,-off svstm by informing his employer in writing.
fl,urthly, on the question of strike,. he notec. that :here \\as u
procedure laid down by law which uniom i1::d to follu•A if L'.1ey
intcrided to take strike action. for example. if the relernnt
;oi,ective
ageeme,,t had provisions for the settlcmnt of dispt1tes.
tey shculd he exhausted. faili,1g '-'· hich this fact should he
commt·n,catcd
to the \liinister of Employment. Labour and
Productivity w.l,o referred the dispute to an arbitrator. conciliutor
ci· ;ndust ·ial «rhitn1tion panel. If the dispute could still nm b,:
resolved, it w2s rekrred to the indu,tria courts. In spite of all
these procedces. I\Orkers still went onl strike in Nigeria: but the
Government bL· lic1 id there \,'as always a way of reaching
agrement \I it!- trade union leaders through consultation.
wnciliation, arbitra1ion, pc, - suasion or adjudication.
Finally. re.ferring to Deere.: No. 35 of 1989 which prohihited"
intcrnc:tional affil;ation o· trade unions and directed the cen rd
tnde union. industrial unions and employlrs' associatio,1s to
ce,·se any ex·sting international' affiliation inconsistent with the
pruvisions of ·:he Decree. he was pleased to inform the Commi:tee
that hi5 Government had decid,;d to repeal this law. The Atto·nei:-
Gcneral was currently precessing the publication of the ·egal
imtrument of repeal which would. he expected. be released in due
coarse.
The Work,rs• members noted that the comments made b) the
Committee of Expe,ts were not new and had been raised for m3n y
years. It was dear that these were very important issues concerning
the application of !he Convention: the single trade union sy,tem;
non-recognition of the trade union rights of certain categoric
of
workers; the broad powers of the Regi;trar to supen·ie union
accounts: and restrictiom. on the right 10 strike. Although it had
been noted that. since 1989, the National Labour Advisory
Collncil had been examining how to adapt ,he legislation to brir;g it
:nto conformity with the Convention. it was surprising to ·,cad :n the
observation that while th:, very examination was going on.
Decree No. 35 of 1989 and other completely contradictory measures
had been adopted. Regarding this ban on any international
affili.ition. the Government representative had stated that this
Deere.: wollld be abrogated; as soon as this was officially don.:.
the Government should inform the ILO so that this point could be
examined. As for the other points rai,ed by the Committee of
Experts. they believed that the Government had to be urged to
acce'erate matters so as to bring the legislation into full confo,mity
with the provisions of the Convention.
The Employers' members agreed that these questions had been
discussed for many years. at least three times in the last decade in
the present Committee. They supported all the points that h, d
been mentioned: the single trade union system: denial of the r;g11t
to organise for certain workers; and the considerable interference
24/50
in financia: matters. With the exception of the restriction on strike
action, thev shared the view that there had been a clear violation
of the Convention in this particulnr case. They wanted to hear the
Workers• member of Nigeria on the question of the single trade
union systcrr . although they were sure that he wouW defend it. It
was. however, a question of what the Conventic 1 provided.
name]) that there should be the ?O,sibility for the setting up of
free unions and that this should not be restricted by 12.w. This was
obviously a p·:oblem in the p:·esent case. The 1989 Dt;,eree made
the situation even more acute, Its repeal, as annoi;nced by the
Government representative, would not resolve the oth;:r problems.
The:1 therefore believed frnt the present Comnittee should
insist on a change in the legal situation in the very near future and
that the case should be taken up once again very soon. They
suggested tha. the conclusions should reflect the·prescnt Committee's
reservation of the right to take steps if changes did not occur
very rapidly.
The Workers' member of :'-ligeria stressed that. before the
Trade Unions Decree No. 21 o: 1987. there had bee re 1,500 trade
unions in Nigeria which hr.d been exploited by emplcyers who, at
one time or another. encourned the unions to f,?;ht amongst
themselves u,ing .. divide and rule" tactics, The 1 vorkers had
therefore believed that it wa, bct:er to merge these unions. instead
of allowing them to be exploited by various emplo)'ers. A
1975 conference decided on such a merger and, in 1978, they requested
legislation to recognise the one central labour organisation
and the merging of l.SG0 !node unions into 1 industrial
unions. He '.lelieved this was good for the workers. good for the
trade unicn, and good for the country. He thus askc:d the ILO to
endorse this kind of arrangemnt. He added that. after almost
three years of debate. a decision had been democratically taken to
reduce the 11cw 41 industrial unions to 22. This decision had been
submitted to both the Federal Govetnment and the employers in
the tripartit national body w:1ich endorsed such 2rrangements
through legislation. Such a legislative endorsement WJS necessary,
othcn\·ise tJ-:erc would be proble11:s in negotiations ,vith employers.
Regarding the non-recognitior. of the right to organise of certain
categoiic, of workers (in tbe :Mint, the Central Bank. external
te:lcommnications and the c1:storr.s and excise service). he believed
tha: t:1is was a gross v:ola:ion of the Convention. The worker,
would continue to put pressu:-e on the Governme::1.t to see that
v.-orkers in r], these establishments would be allowed to llnionise.
He did not recept the Governmcnl's argument concerning customs
and excise workers. accorc'ing to which they covld not organi•,
e in trade • 1ioTI, because the1. carried arms. The nature of their
v,ork enti.led them to carry arins. hut they were not members of
the armed forces. As regarded ·:he ban on internaticmal affiliation,
his organisation had· taken tl1e matter up with the Government
a:1d the Govocrnment had agreed to repeal Decree No. 35. This
\1as hecaus(, the workers believed that if employe-s in '.\ligeria
v,ere allowed to affiliate to thci counterparts throughout the
"orld. there was no reason whv \\orkers should be discriminated
tgainst in af1liating with their colleagues in other parts of the
world. But he was satisfied that the Government wa.s taking the
practical steps to have the I:ecree repealed,
The Government representa·:ive requested clarification from
the Employers' members concerning their statement on strikes in
essential services. Referring to the Workers· member of Nigeria,
the speaker pointed out that. to the best of his knowledge. the
documents concerning the restructuring of the NLC's affiliates
into 22 industrial unions had no: ye, reached the Ministry in Lagos.
De5i:;ite that. he was sure that the Government would agree
to register th;: 22 industrial union, involved. because the restructuring
had been done of the wo:·lcers' own volition and tl:e Government
had no right to question such exercises. He thus assured
the Nigerian Workers' member that the Governmnt would not
go agains. the NLC's wishes. On the question of tic-: right to organise
of customs workers and other workers in se:1sitive areas,
his Government believed that a certain degree of caution should
be taken in allowing persons carrying arms to unionise. He
stres,ed that his Government was not trying to shy away from the
Conventiom it had ratified; it believed strongly in those Conventions
and wanted to implement their provisions to the letter. However,
situations in other parts of t.1e world had to be considered.
Lastly. he repeated that the: Government was in the process of
having Decree No. 35. repealed, b-ut noted that it took time to
respect all the procedures that haci to be undertaken, ir.cluding
reference from the Ministry of Labour to the Ministry of Justice.
He hoped that before the next session of the Conference tht; Decree
would be repealed.
The Workers' member of Nigeria pointed out that :he documents
concerning the restructuring of the trade union movement
had been forwarded to the Government. On the question of
adaptability to local conditions in which the customs and excise
workers v.-ere employed, he believed there was noth:ng in Nigeria
to prohibit t:1e strict observance of the Convention. The reason
for them carrying arms was \\'ell-knov, n: there were many smugglers
crossing the boarders carrying arms. and customs and immigration
staff needed to be equipped in order to be able to do their
work properly.
The Employers' members explained their rcservaiion in reply
to the Government representative's quc1"): they felt that the Convention
could be used as a basis from which to derive the right to
strike, but believed that the limits on this right were not indicated
expressly therein and that the Exprts' '- iews on limiting strikes
only in essential services in the strict sense of rhe term could not
be read from the Convention. This was because the v:ording did
not so state and because the Convntion had to be interpreted.
like all international treaties, in accordance with the Vienna Convention
on the Law of Treaties.
The Committee noted the report of thi.: Cnmmittee of Experts
and the oral information provided b ,· the Gn, crnment repre,entative.
It expressed its concern at the fact that the Government did
not seem to have made any progres; to\\ard, bringing its law and
practice into conformity with the re,1uiri.:mcnts 01 Articles 2 and 3
of the Convention concerning. in pa-tieular. the inglc trade union
system established in the legislation. the non-recognition of the
right to organise of certain categories of •vor]ccrs. and restrictions
on the activities of trade unions. Th,: Committee recalled the persistanee
of these various discrepancie, for many years. In addition,
it noted with concern that Dec ·ee No. 35 of 1989 constituted
a serious violation of the right of wo.·kers· and employers' organisations
to affiliate with the international organisations of their
choice. as guaranteed in Article 5 of (he Con\'ention. ll expressed
the firm hope that the Government would take in a very short
time the necessary steps to ensure fnll apr: lication of the Convention
and. in particular, that i1 wouU abrogate Decree No. 35 in
the near future as it had promised t,i do on several occasions and
that it would communicate the repealing text to the ILO as soon
as it was adopted. If it was the case that the situatio,1 did not
evolve favourably in the near futurt. the Committee would have
to consider other action or comments if thi, were not the case.
24/51
Document No. 251
ILC, 78th Session, 1991, Report of the Committee on the
Application of Standards, pp. 24/52-24/55 (Panama)
-™j Provisional Record
Seventy-eighth Session, Geneva, 1991
Third Item on the Agenda : Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
PART ONE : General Report 2
PART TWO : Observations and Information concerning Particular Countries 24
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 24
A. General Observations and Information concerning Certain Countries 24
B. Observations and Information on the Application of Conventions 29
C. Table of Detailed Reports on Ratified Conventions 91
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 92
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 93
A. General Observations and Information concerning Certain Territories 93
B. Table of Detailed Reports on the Application of Conventions (Non-Metropolitan Territories) 94
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 95
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) 97
Reports received by 22 June 1991 relating to the Paid Educational Leave Convention, 1974
(No. 140), and Recommendation, 1974 (No. 148), and the Human Resources Development Convention,
1975 (No. 142), and Recommendation, 1975 (No. 150). 97
Index by Countries to Observations and Information Contained in the Report 98
24/1
24/52
Panama (ratification: 1958). The Government suplied the following
information:
1. On the alleged high number of members required for the
creation of a union (50 worke,s or ten employers t:.nder section
344 of the Labour Code), this requirement does not limit the right
to unionise which is universally recognised because the Convention
does not lay down minimum or maximum levels for the formation
of a union and since there is no recommendation by the
Committee of Experts on this point. In article 64 of the National
Constitution, the number or amount that is set out in section 344
of the Labour Code is aimed only at strengthening union organisations
so that they can effectively ise the right to bargain as a
basis for the collective right centred on the principle of the majority.
The current tendency of occupational organisations is to move
towards the creation of industry-type unions so as to be able to
pursue their activities throughout the national territory ; this aim
requires the grouping together of labour forces in numbers superior
to those laid down by law. The union organisations themselves
are against a reduction in the number of members required for the
creation of a union, because this i wolves a splintering of the
working class and a serious weakening of the workers' movement.
2. As regards the comment that 75 per cent of union members
must be Panamanian (contained in s. 347 of the Labour Code),
this is not a discriminatory requirement but rather one which belongs
to the aspirations of organisations of workers because economic
activity had been in the hands of foreigners, a domain that
was extending into commercial activities where the workers involved
were not Panamanian. In an effort to help nationals, standards
were adopted setting percentages to enable Panamanians to
• work and to guarantee the right to organise. Apart from this criterion,
there is no restriction or ban on unions, in their own organisations,
to allow foreigners to become members, provided that
their statutes permit this. This situation is viable since the legislation
does not consider persons to be foreigners if their spouses are
Panamanian or if they have resided ir the country for ten years or
more. The Government considers thet none of the Articles in the
Convention contains provisions on the inclusion or exclusion of,
or ban restrictions on the membership of trade unions of foreigners.
It adds, however, that none of the current trade union legislation
in Panama (Labour Code) conta ns any prohibition or obstacle
affecting the right to unionise of foreigners because of their
nationality, so long as the level of 25 per cent of members of the
union in question is not exceeded, as is provided in articles 17 and
20 of the National Constitution which reserve certain activities for
Panamanian nationals and article 39 of the Magna Carta which
guarantees freedom of association.
3. Regarding the observation on he automatic removal from
office of a dismissed trade union oficial (s. 359 of the Labour
Code), the Government considers it normal that the mandate of
an officer of a works union ends when he is no longer a member
because he has ceased to be employed by the enterprise. The
Government admits that it is not clear in the Labour Code what
happens to leaders of an industry levtl or mixed union and that is
why section 359 of the Code is not applied to them. According to
the Government, in addition, works unions could be led and/or
dominated by former employees of the enterprise, which would be
illogical and impractical.
4. Regarding the wide powers of supervision by the authorities
over the records and accounts of trade unions (s. 376 (4) of the
Labour Code), the Government indicates that the State does not
control trade union activities merely by undertaking accounting
checks and by registering minutes, as is laid down in the section
referred to, since the unions are of public interest and, consequently,
the Ministry of Labour and Social Welfare, being a state
body, is obliged to promote the creEition of these organisations
and to certify their existence, validity and guarantee their protection.
According to the Government, i: is not clear that such powers
of supervision over this union documentation exist since the
"minutes registers" are limited to those minutes recording
changes in or the election of executive committees, amendments
to the statutes and authorisations to exercise rights vis-à-vis third
persons, as a basic principle for the puDlicity of and authentication
of the legal personality and the legal r;presentatives of the organisation
in question.
According to the Government, the.Ministry only intervenes
when challenges are made by the members themselves to the election
of an executive committee, using ordinary procedures and
with the knowledge of the labour judges. There is no control over
union accounts since the examination of the books is only aimed
at verifying complaints of mismanagement of union funds or of
abuse of office so as to establish the level of accounting standards
and honesty in the management of these accounts. The Ministry
cannot suspend any union leader "for mismanagement of union
funds" or "undue appropriation" of them. Protection of the integrity
of union "management" prevents the Ministry from being
able to make court challenges of any kind, a situation that has
been the principal reason for corrupt on and the unions' loss of
prestige.
In addition, the formality of lodging registration requests for
new unions is aimed at giving them protection or immunity (fuero
sindical) to all their members, as set out in sections 381 and 385 of
the Labour Code. Without this requirement, that unions being
formed lodge registration applications with the Ministry, such protection
would not be effective.
5. With regard to the exclusion of public servants from the
scope of the Labour Code and consequently from the right to
organise and to bargain collectively (s. 2 (2) of the Labour Code),
the Government states that Chapters 2 and 3 of Title XI of the
1946 National Constitution lay down the basic principles of personnel
administration and the functioning of that administration,
respectively. These constitutional provisions were the basis for the
adoption of the Act on Administrative Careers in 1963 which was
amended by Cabinet Decree in 1968 so as to repeal the sections
concerning the stability of employment of public employees. The
Labour Code could not be applied to public servants except for
those exceptions allowing unionisation contained in Act No. 8 of
25 February 1975 and Acts Nos. 34 and 40 of February 1979 which
apply, respectively, to state enterprises such as IRHE, INTEL
and the National Port and Railways Authority of Panama. There
are other administrative careers permitted by article 300 of the
National Constitution, such as the judiciary (covered by the Judicial
Code), teaching in the national education system, the diplomatic
service, the health service, the act on nurses and auxiliary
hospital staff, the act on laboratory assistants, the act on firefighters,
post and telegraph employees, employees of the National
Bank of Panama, etc. These are special laws which are not
amended by the act on administrative careers. In addition, Panama
has not ratified Convention No. 151 on the right to organise of
public employees, and is thus not bound by that Convention. Nor
is there a violation of Conventions Nos. 87 and 98 which have
nothing to do with the right to organise of public employees, but
rather regulate union relations between workers in private undertakings
and employers, relations which are fully covered by the
Labour Code.
6. With regard to the comments of the Committee of Experts
on Act No. 13 of 11 October 1990 which supposedly "sets out
restrictions on the right to strike" and to bargain collectively, the
Government states that the possibility of resorting to arbitration,
using the labour authorities in cases of a prolonged strike which
could produce serious economic disruption in an undertaking, is a
discretionary option. It can be used following a summary verification
of this disruption, with the workers being given a hearing;
this is provided for in the Act as a transitional provision lasting
three years. To date it has not been used. This discretion is not
new to Panamanian legislation. Previously, Act No. 95 of 1976
introduced a similar option.
7. Regarding the comments on Act No. 25 of 14 December
1990, the Government states that this is an Act concerned with law
and order against subversive acts by public servants ; that it is a
temporary enactment in force until 31 December 1991 ; that it does
not involve dismissal or sanctioning of trade union leaders because
of their office, but the sanctioning of public servants who participated
in a military plot to overthrow the Government in the following
ways : the organisers of the movement exhorted the population
to undertake a permanent general work stoppage until the
Government fell, and communications and dialogue took place
between public servants organising the illegal stoppage and a mutineer
after the police central headquarters had been taken. Only
those public servants who engaged in physical violence against
other officials by impeding their access to workplaces or who damaged
state property have been sanctioned. The Government states
that irregular "civil associations" are involved, set up under the
provisions of the civil code as civic bodies and charities which have
illegally tried to operate as ministerial unions and as the National
Federation of Public Servants. It was not a labour "strike" since
there was no indication that a labour dispute existed, but it was an
illegal "general work stoppage".
At the end of March, the State Prosecutor of the Supreme
Court considered unconstitutional only the subsection of article 2
of the Constitution which tried to establish that "The Executive,
through the Cabinet Council, shall determine whether actions or
events are to be considered as attacks on democracy and the constitutional
order of the State », on the grounds that this power is a
matter of law. On 23 May 1991, the full Supreme Court delivered
a judgement concerning the petition claiming unconstitutionality
lodged against Act No. 25 of 1990 by several trade union leaders
and ex-employees of IRHE and INTEL; the judgement upheld
the constitutionality of all provisions of Act No. 25 except as regards
the above-mentioned subsection of article 2 of the Constitution.
In addition, a Government representative reiterated all of
the written information communicated by his Government. He
24/53
further referred to the difficulties encountered by his Government
in complying with its obligations of sending the reports due in 1990
and indicated that 21 reports on the Conventions have been sent
since March. With respect to the observations of the Committee
of Experts concerning Act No. 13 of 11 October 1990 and Ac. No.
25 of 14 December 1990, he considered that these fall outside the
reporting period and should be excluded from the present examination
natii such time as the Committee of Experts can examine
the very significant documentation submitted with the reports of
199Ü and 1991. Nevertheless, he took the opportunity to inform
the Committee that Act No. 25 mentioned above does not involve
any penal matters, nor provide for the detention of any person or
create any type of discrimination'. The detailed analysis of this Act
made by the Attorney-General in April 1991 arid the Supreme
Court decision (May 1991) confirm that the Act does not violate
constitutional principles or any human rights. It orovides [or administrative
appeal, as well as for appeal before the Supreme
Court. It also clearly defines the constitutionality of the retroactive
nature of the Act, since it is a public order Act which normrlly
can be applied retroactively without any time-limit. It was applied
retroactively at the time of an unlimited general s'.rike.
about which a series of information was communicated for the
Case No. 1569 examined by the Freedom of Association Committee.
As regards provisions of the Labour Code referred to by the
Committee of Experts, the speaker indicated that the requirement
of high number of members for the creation of a union (50 workers
or ten employers under section 344 of the Labour Code) does
not limit the right to unionise which if universally recognised because
the Convention does not lay down minimum or maximum
levels for the formation of a union and since there is no .reccinmendation
by the Committee of Experts on this point.,
As regards the comment that 75 per cent of union members
must be Panamanian (contained in section 347 of the Labour
Code), this is not a discriminatory requirement but rather one
which belongs to the aspirations of organisations of workers because
economic activity had been in the hands of foreigners, a
domain that was extending into commercial activities. Apart from
this criterion, there is no restriction or ban on unions, in their own
organisations, to allow foreigners to become members, provider!
that their statutes permit this.
Regarding the observation on the automatic removal from office
of a dismissed trade union official (section 359 of the Labour
Code), the Government considers it normal that the mandate of
an officer of a works union ends when he is no longer a member
because he has ceased to be employed by the enterprise, ^he
Government admits that it is not clear in the Labour Code whai.
happens to leaders of an industry-level or mixed union that this is
why section 359 of the Code is not applied to them.
Regarding the wide powers of supervision by the authorities
over the records and accounts of trade unions (section 376(4) o'
the Labour Code), the speaker indicated that the Ministry only
intervenes when challenges are made by the members themselves
to the election of an executive committee, and that there is no
control over union accounts since the examination of the books is
only aimed at verifying complaints of mismanagement of union
funds or of abuse of office so as to establish the level of accounting
standards and honesty in the management of these accounts. His
Government is studying the elaboration of a Decree concerning
section 376 of the Labour Code to determine the documents and
acts which should be communicated to the Minister of Labour for
keeping in the archives in order to avoid the powers of the
authorities being considered to be too wide.
In addition, the formality of lodging registration requests for
new unions is aimed at giving them protection or immunity [fuero
sindical) to all their members, as set out in sections 381 and 385 of
the Labour Code.
With regard to the observation concerning the exclusion of
public servants from the scope of the Labour Code and consequently
from the right to organise and to bargair. collectively, the
speaker stated that the 1946 Constitution lay dov/n the basic principles
of personnel administration and the functioning of that administration.
These constitutional provisions were the basis for
the adoption of the Act on Administrative Careers in 1963. There
are other administrative careers permitted by article 300 of the
National Constitution, such as the judiciary and teaching in the
national education system.
With regard to Convention No. 98 the speaker stated that Act
No. 13 of 1990 was clothed in the concept of "stabilisation policies"
applicable in exceptional and temporary conditions to enable
economic recovery and new employment generation. The
Act recognises agreed pay increases and its application is based 0.1
their annual mean, thus guaranteeing protection, of the workers;
such increases would not be possible through negotiation because
of the economy's precarious state. It also recognises temporary
accords within collective agreements and permits, new agreements
to be negotiated directly., so that it does not prohibit or limit the
right to negotiate collective labour agreements if the pmies agree.
The Workers' members noted that the Committee of Experts'
comments da-.e back to 1967 without any positive reply from the
Governmert 2nd recalled that the Committee expressed its hope
in 1989 that u.: legislation would be brought soon in conformity
with the Convention. They observed that the informat an communicatee
by the Government verbally and in writing does not contain
a reply and does not allow to note the progress mede. On the
contrary, acts setting out restrictions on the freedom of association
and the collective bargaining were adopted in 1990. Thus, Act
No. 25 of 14 December 1990 greatly prejudices the exercise of the
right of associations of public employees to organise .heir activities,
includ-ing through strikes. Noting that in its replies the Government
statec that Conventions Nos. 87 and 98 have nothing to
do with the right to organise with respect to public administration
employees, the Workers' members asked how such arguments can
be put forward after so many years and after the Committee expressed
the hope in 1989 that the Government would take into
consideration the Committee of experts' comments. Noting the
lack of progress, as well as the information supplied by the Government.
the Workers' members proposed to mention this case in
a special paragraph of the Committee's report.
The Employers' members expressed their concern about this
case, which has been dealt with on many occasions already. In
fact, very little has changed. As can be seen from the information
provided by the Government verbally and in writing, there is obviously
no intention to undertake any changes at all. The Employers'
members referred to the points which the Committee of
Experts made in the beginning of its comments and considered
them to be very clearly violations against the principles of freedom
of association set out in Convention No. 87. They expressed the
opinion that there is no reason why the public servant should be
deprived of the right of freedom of association ; there is no reason
either in the requirement that 75 per cent of union members shall
be Panamanian, even when the Government representative says
that this can be traced back to the fact that in Panama there are
many foreigners who are employed. It is not logical to exclude
foreigners fro.Ti participation in professional organisations, and
the automatic removal from off ce of a trade union officer in the
event of his dismissal is also a very clear violation of the Convention.
The Employers' members considered that it was not possible to
determine whether the right to strike had been subjected to excessive
restrictions, since the Experts had used the wrong yardstick.
With regard to the only restrictions it held acceptable for essential
•services in the strict sense, the Committee of Experts had rightly
referred to "its" principles; these were, in any case, not the principles
of Convention No. 87. In this regard, the .Employers' members
referred to their opinion expressed in the course of the general
discussion on the question of interpretation of ILC
Conventions. But as regards the other points, they pointed out
that the limitations imposed on freedom of association are very
clear violations of Convention No. 87. With regard tc the promotion
of collective bargaining there also remains quite a lot to be
done, taking into account the restrictions from carrying out collective
bargaining for the public servants and legislative attacks on
existing collective bargaining.
So. as far as Convention No. 98 is concerned, there is not any
improvement either. This case has been dealt with for decades,
and there is absolutely no evidence that in the foreseeable future
anything is going to change. The Employers' members proposed
to mention this case in a special paragraph of the Committee's
report.
The Workers' member of Panama stated that Act No. 13 of
1990 violates the freedom of association by providing for the extension
of current collective agreements and that the application
of Act No. 25 has resulted in the dismissal of a large number of
workers in the public sector. He emphasised that workers suffer
from the consequences of the disorder which was due to the
events which took place in his country. The speaker confirmed his
devotion to tripartism and expressed the hope that the Committee
of Experts' comments can be taken into account by the Government
to ensure compliance with the Conventions. He expressed
the opinion that a direct contacts mission should visit the country
in order to find out what is actually going on there.
The Workers' member of Germany referred to the comments
made by the Employers' members concerning the interpretation
of the right to strike by the Committee of Experts and expressed
the opinion that it should have been part of the general discussion,
otherwise the work of the Committee on individual ctses might be
held up by constantly repeated reservations. He pointed out that
discussions cannot be undertaken unless the principles which apply
to a particular Convention are accepted.
The Employers' members stated that, as they said during the
general discussion, it is unavoidable, while examining a case in
24/54
order to find out whether a government has fulfilled its obligations
or not, to look at the legal questions.
The Government representative stated that the Labour Code
now in force was adopted in 1972 and consequently comments
made since 1967 have nothing to do \/ith this Code which tried to
include provisions of various international instruments. He also
indicated that the documentation. wi :h respect to Act No. 25 has
been sent for the Case No. 1569 und :r examination by the Committee
on Freedom of Association, in;luding a lot of evidence and
documents which have not yet been analysed. The speaker considered
it unfair to talk about a direct contacts mission to deal with
Acts which have not yet been approp.iately analysed by the Committee
of Experts, nor should this cas be mentioned in a '"special
paragraph" of the report of the pn:sent Committee because in
only eighteen months of democratic rule there ha, not been
eaough time to rectify mistakes or legislations which were not in
compliance with Conventions for over 20 years. He pointed out
that his Government is not unwilling to bring the legislation into
conformity with the Convention. but the fact that the labour sector
is very distrustful of the Government docs not allow any revision
of the Labour Code. The speaker informed the Committee
that his Government appealed for a national tripartite agreement
with a view to amend some parts of the Labour Code in order to
bring about the necessary economic r xovery. He considered that
a direct contacts mission is not justifid at this stage.
The Committee took note of the i.1formation. both verbal and
in writing, provided by the Governmrnt representative, as well,as
the discussion which took place in the Committee. It regretted
that this information does not cont, in any new element which
would make it possible to ensure a b( tier application of the Convention.
The Committee recalled that most of the comments made
by the Committee of Experts date back to 1967. Bearing in mind
the importance of the points raised i 1 the comments which concern
trade union rights as such, as well as the right to free collective
bargaining, the Committee expressed its deep concern faced
with the continuing number of seriot s divergencies between law
and pratice, on the one hand, and Convention, on the other. The
Committee urged the Government to adopt the necessary measures
in the very near future in order to ensure full implementation
of Conventions Nos. 87 and 98. While recall;ng the substance
of its conclusions of 1989, the Commi .tee trusts that specific measures
in line with the observations made by the Committee of
Experts can be observed next year.
The Committee decided to mention these conclusions in a special
paragraph of its report.
24/55
Document No. 252
ILC, 79th Session, 1992, Report of the Committee on the
Application of Standards, pp. 27/48-27/52 (Colombia)
~ Ì International Labour Conference J À
^ j Provisional Record
Seventy-ninth Session, Geneva, 1992
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Pages
PART ONE: General Report 2
PART Two: Observations and information concerning Particular Countries 21
I. Observations and information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 21
A. General Observations and Information concerning Certain Countries 21
B. Observations and Information on the Application of Conventions 25
C. Table of Detailed Reports on Ratified Conventions 92
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) . . . . 93
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 94
A. General Observations and Information concerning Certain Territories 94
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 95
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 96
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) . . . . 98
Reports received by 22 June 1992 relating to Conventions Nos. 26, 99 and 131 and Recommendations
Nos. 30, 89 and 135 98
Reports received by 22 June 1992 relating to Convention No. I l l 98
Index by Countries to Observations and Information Contained in the Report 99
27/1
27/48
Convention No. 87: Freedom of Association and Protection of lhe
Right to Organise, 1948
Colombia (ratification: 1976). The Government communicated
the following information :
The political Constitution prohibits the suspension and cancellation
of the legal personality of trade union organisations. and it is
appropriate to note that such a provision is also found in Act
No. 50 of 1990.
However, the requirement that two-thirds of the members be
Colombian in order to form a trade union, the alleged intervention
in the internal administration of trade unions owing to the presence
of public servants of the ministry at some meetings (particularly
when they declare a strike), the requi,ement of Colom':>ian nationality
to be elected a trade union leader, the additional penalty of
denying trade union office for a period up to three years where a
judge has found a person responsible for the dissolution of a trade
union, and the requirement that persons be of the respective occupation
or profession in order to be elected as a trade union officer
are matters which were fully referred to in the letter dated 25 October
1991 directed to the Director-General of the ILO (the Government
has attached a copy of its letter).
The Government had requested in a letter dated 9 October 1991
sent to the Director-General of the ILO that - considering the
importance of the matter - a Convention be adopted on the right to
strike. The Government regrets that the Director-General wrote
on 22 November 1991 that, for procedural reasons, he would not be
able to include this significant matter on the agenda of the International
Labour Conference in 1992 or 1993. The Government takes
this opportunity to reiterate its request concerning the urgency of
the adoption by the !LO of a Conven:ion expressly concerning the
right to strike. It is equally insisting on the fact that this right should
not be derived from interpretations which, even if they are valid,
are but the opinions of respectable jurists. In this sense it mentions
that there are restrictions on the right to strike taking into account
that the Labour Minister and the President of the Republic can
invoke the arbitration tribunal to resolve the conflicts after 60 days
of strike or if the strike affects the whole of the national economy.
In this respect, it is very illustrative to mention the jurisprudence
of the Supreme Court of Justice which has considered Law No. 50
of 1990 to be in conformity with the Constitution and has expressed
itself on the above-mentioned question in the following manner :
The trade union movement, particularly in moments of its apogee,
had always wanted the right to strike to be absolute and unlimited
so that collective disputes could only be resolved by its unconditional
will ; nevertheless, it was recognised that strikes prejudice
not only the interests of workers who rely on them to fulfil their
aims, but also the aims of the enterprise and, in general, those of the
economic order which also deserve the same protection ; it was necessary,
consequently, to seek a balance between the opposed interests
and this was what was understood by those who wrote the Constitution
of 1936 which did not permit strikes in the public service
and left it to the law to regulate the recourse to strikes in these services
as was very judiciously done in the case examined here ; the
well-known image of the industrial institutions abandoned, useless,
left indefinitely to deterioration and unproductivity, as permanent
witnesses to the conflict which nobody wanted to resolve to recuperate
lost goods and emloyment itself, led the law to preclude the
general impoverishment and social damage made by the obstinate
attitude of the parties, by means of alternative methods which do
not touch the protection due to all and which now is specifically
supported by article 55 of the Constitution according to which " the
State has responsibility to promote ... other means for the peaceful
solution of collective industrial disputes " as the arbitration court
precisely does. (Supreme Court of Justice, Plenary, Decision of 26
September 1991.)
As regards the right to strike, article 56 of the Constitution provides
:
The right to strike is guaranteed except in essential services as
defined by legislation.
The law shall regulate the right to strike.
A standing committee composed of Government and
employers' and workers' representatives shall promote good industrial
relations, contribute to the resolution of collective labour disputes
and coordinate wages policies and labour policies. Its composition
and functioning shall be determined by law.
In performance of this constitutional requirement, the Government
has, through the Ministry of Labour and Social Security,
called a meeting of employers' and workers' representatives to conelude
an agreement on the composition and functions of this standing
committee and presented a Bill to the National Assembly on the
subject in December 1991. When the law is enacted, the standing
committee will, in conformity with the constitutional requirements
and its purpose of coordinating labour policy, report on how legislation
should be adapted to Convenions Nos. 87 and 98.
In addition, a Government representative, the Minister of
Labour and Social Security, stated that the Committee of Experts
had confirmed a major improvement in the application of the Convention,
although it pointed out that provisions which could be
incompatible with the Convention still existed. As regards the legislative
requirements concerning nationality criticised by the Committee
of Experts (two-thirds of the members had to be Colombian
*.o establish a trade union and persons had to be Colombian for
election to trade union Office), the new Constitution granted to foreigners
the same rights and guarantees as nationals, but provided
that the law could regulate these rights. The legislation therefore
violates neither the Constitution nor the Convention. Foreigners
could form unions, but could not control a union or be union
leaders. This was based on national sovereignty, for example, to
restrain foreign leaders from calling a strike in industries related to
national security. Similar standards no doubt existed in most
countries. The trade union central organisations of the country had
not objected to the nationality requirements, any amendment to
them could, however, be discussed when the tripartite labour commission,
on which Congress was soon to pass regulations through a
law, was set up. As for the supervision by public servants at meetings
of unions of internal management (section 486 of the Labour
Code), the presence of public servants was aimed at verifying fulfilment
of the majority qualifications set out in trade union statutes,
for example, for the calling of a strike. Trade unions frequently
requested the presence of public servants when internal disputes
occurred. In such cases, the role of the public servant was to collect
evidence which would allow conflicts to be solved in the future.
With regard to the suspension for up to three years of trade union
officers who had been responsible for the dissolution of their unions
(section 380(3) of the Code), Act No. 50 of 1990 removed the
administrative power to suspend officers. It was now the judicial
authority which verified whether a trade union leader was responsible
for the dissolution or suspension of a union. Since such dissolution
or suspension was ordered by the judicial authority, section
380(3) of the Code did not violate the Convention. With regard to
the legislative requirements that persons belong to the trade or
occupation in order to be a trade union leader, it was inherent in
the nature of a trade union that its leaders belong to the same profession
as its members. However, the Government did not insist on
this point and was open to dialogue with the trade union confederations;
it requested the ILO's technical assistance in this respect. As
for the right to strike of federations and confederations, a draft law
was before Congress on this subject and would be discussed. There
had been developments in the country regarding the right to strike.
The previous Constitution had recognised it, except in the public
service. The new Constitution of 1991 only laid down restrictions
on the right to strike in essential public services, to be defined by
the legislature in a future law; there would be tripartite consultation
on the subject. Moreover, the Government had requested the Governing
Body of the ILO to study the possibility of a future Convention
on the right to strike because at present it was the subject of
conjured-up interpretations by the Committee of Experts or the
Committee on Freedom of Association. The ILO should regulate
the right to strike for the sake of judicial clarity. With regard to the
power of the Minister of Labour and the President of the Republic
to intervene in disputes (sections 448(3) and (4) and 450(1 Kg) of
the Code), this discretion resulted in the calling of a compulsory
arbitration tribunal in conformity with the principles of the ILO
supervisory bodies in cases where the right to strike was restricted.
As for the possibility of dismissing trade union officers who had
intevened or participated in an illegal strike (section 450(2) of the
Code), the ILO supervisory bodies recognised the legitimacy of dismissal
in cases of illegal strikes and the Convention provided that
workers' organisations should respect the law of the land. Accordingly,
this section did not violate the Convention.
The Workers' members referred to the report of the Committee
of Experts which had drawn attention to the Government's report,
the discussion of the Conference Committee in 1991. and the
reports of the Committee on Freedom of Association as well as the
1991 direct contacts mission. They further referred to the
Government's written replies and the statement by the Minister of
Labour and Social Security. In describing the context in which this
case was being discussed, they recalled the large number of tradeunionists
that had been killed or had disappeared and that the situation
had not yet improved.
The Government representative made a point of order to the
effect that the question of public order and disappearances and
deaths concerned not only trade unionists but also politicians, peasants,
soldiers, teachers, children, etc., and asked the speaker to limit
himself to matters related to the Convention.
The Workers' members pointed out that the Committee of
Experts had referred to this Committee's discussions in 1991 which
had made mention of these matters. They pointed out the reason
they made reference in their introductory remarks to the disappearances
and deaths of trade unionists was in order to set the difficult
context of freedom of association in Colombia. They noted the
written information given by the Government as well as the legislative
measures noted with satisfaction by the Committee of
Experts in its report. They referred, however, to the points raised
by the Committee of Experts that were incompatible with this
Convention. With reference to the requirement that persons be
Colombian for election to trade union office, they considered it was
still a violation of the Convention even if membership of unions was
not prohibited by such law as was pointed out by the Government
representative. They welcomed, however, the statement made by
the Minister that the Government would be discussing this matter
with workers and further hoped that this contradiction with the
Convention would be removed soon. With respect to the suspension
for up to three years, with loss of trade union rights, of trade
union officers who have been responsible for the dissolution of
their unions, they rejected the argument that this was not done by
the Government but by the labour court because in any event it was
the laws of the country that permitted such suspension and those
laws are not in conformity with the Convention. They pointed out,
as the Employers' members had done in the context of another
case, that trade unionists were not asking for immunity from ordinary
laws of the country but that this Convention protected them
when they acted legally as trade unionists and the law of the country
was in conformity with this Convention. Regarding the requirement
that persons belong to the trade or occupation in order to be
considered eligible for election to trade union office, they were not
sure the Government representative had said the relevant laws had
been repealed, despite the fact that most trade union officials were
from the trade or occupation in question, they considered the law
should not prohibit unions from appointing a full-time professional
officer. Referring to the Minister's statement that the prohibition
of strikes in the public service being repealed except.in essential
public services, they pointed out possible differences between the
Committee of Experts and the Government in their understanding
27/49
of what constituted essential services. Even though the Convention,
as had been stated, did not specifically refer to strikes, they said the
Committee of Experts had made it quite clear that strikes should be
allowed when workers were acting in defence of their economic and
socia. Interests, and any attempts to restrict such rights would be in
contravention of the Convention. Without getting into a general
debaie on the right to strike, they wished to be on record as being
in faveur of the Committee of Experts long-standing interpretation
of this Convention in this regard. They requested the Government
representative to provide the Committee of Experts with a clear
definition of what constituted essential public services to enable it
to assess the extent of this exception. They stressed the views of the
Committee of Experts that if strikes were restricted or prohibited.
as in essentia! services, appropriate guarantee should be afforded
such as impartial and speedy conciliation, mediation and arbitration
procedures. With regard to the question of illegal strikes, they
considered that the problem was not so much the strikes considered
illegal under laws that were strictly in conformity with the Convention,
but the laws that gave illegal strikes a very wide definition as
did the Colombian laws and Constitution. They welcomed the
information that was noted with interest by the Committee of
Experts of the desire expressed by the Minister of Labour and
Social Security to the direct contacts mission which took place in
September 1991 to formally request the technical assistance of the
ILO in the future process of reform of the labour legislation. They
requested this Committee's conclusion to reflect their wish that as
a result of this assistance the laws would soon be put in full conformity
with the Convention.
The Employers' members felt that the report of the Committee
of Experts on this question could be treated in three parts. The first
part dealt with the points where national legislation was in conformity
w:th the Convention. Two years ago the Conference Committee
had considered devoting a special paragraph to Colombia.
Today, however, a nomber of cases of progress could be observed.
The second part pointed out the provision of the legislation that
raised certain questions or where the Experts clearly considered
these provisions to be contrary the the Convention. They acknowledged
that the Government representative had provided some
information relating to these points. As regards the requirement
that two-thirds of the members be Colombian in order to establish
a trade union, and the requirement that persons be Colombian for
election to trade union office, while it was often the Labour Code
that contained these requirements based on considerations of sovereignty,
they noted that the Constitution of the country left the
question open, as was often the case in other countries. They pointed
out that, following the adoption of laws and directives of the
European communities in this area, discrimination based on
nationality did not exist in Europe. Given the Government's statement
that it was ready to establish a dialogue with workers and
employers on this subject, they considered its position to be flexible
and that changes could be expected. As regards the suspension of
trade union officers who were responsible for the dissolution of
their unions, the Employers' members expressed doubts that these
provisions would truly protect the trade union officers, and it
seemed to them that it was up to the Government to examine this
question and prepare amendments to the law in this respect. As
regards the requirement that persons belong to the trade or occupation
in order to be considered eligible for election to trade union
office, .hey considered that this question was a subject for the union
to determine internally and not a subject requiring legislative
tratme-it. Given the statement by the Government representative
that his Government was ready to engage in consultations on this
subject as well, they felt that the tripartite committee he referred to
earlier could be the appropriate body to take up these questions.
With regard to the massive dismissals of workers in the public sector
and the extended use of short-term contracts in the private sector,
they felt there could be reasons other than that mentioned by
the Committee of Experts, namely aimed at weakening the trade
union movement, to justify such measures. However, they did not
feel they should continue the discussion of this aspect at this stage.
The third part of the report of the Committee of Experts related to
the right to strike. The Government representative had stated that
the Convention does not contain precise provisions in this respect
and that the ILO should prepare an instrument on the rights and
obligations relating to strikes and their restriction. The Employers'
members noted that this year a draft resolution had suggested similar
points but it had not been given a high priority. Therefore, in
their v!ew, it was necessary to limit the discussion to Convention
No. 87 at this stage, as that instrument was the basis for the views
of the Committee of Experts on this subject. Referring to earlier
statements, they requested the Committee of Experts to reexamine
their reasoning on the right to strike, as the results of such
reasoning do not follow from the text of the Convention. They considered
that the Convention should, as the Committee of Experts
itself had indicated on other occasions, be strictly interpreted
according to the Vienna Convention on the Law of Treaties, in particular
articles 31 and 32 which, besides the context, req uire the taking
into account of (a) all prior agreement regarding the interpretation
of the treaty or the application of its provisions made
between the parties and (b) all prior practice followed in the application
of the treaty, using which the agreement between the parties
for the interpretation of the treaty was established. The report of
the Committee of Experts contained a large number of points on
the application of the Convention throughout the world. It was
clear from this report that the situation in various countries was so
different that there were no common elements to be identified in
the application or prohibition of the right to strike. Using the interpretation
rules of the Vienna Convention it was clear that the rules
supplied by the Committee of Experts for the interpretation of this
Convention were clearly incorrect. Indeed, strikes not only adversedly
affected employers, but third parties as well. The definition of
the scope and the prohibition of strikes should not, as a result, be
left to the decision of one party: only the State that had fully accepted
the democratic rights and liberties of its citizens, should be
responsible for the definition of the right to strike and its
limitations. The Employers' members considered that this question,
along with the others previously mentioned, justified that this
question, along with the others previously mentioned, justified that
a request be made to the Committee of Experts for it to once again
re-examine its conclusions. The fact that the same conclusions had
been reached concerning the Committee on Freedom of Association
for many years did not make either these conclusions nor the
principles derived from Convention No. 87 correct. Finally, as
regards the right to strike in Colombia, the Employers' members
disagreed with the conclusions reached by the Committee of
Experts.
The Workers' member of Colombia indicated that, during the
month of June 1992, nine trade unionists were assassinated and,
contrary to the statement made by the Minister of Labour, the situation
of unions in Colombia is very grave in law (as indicated by
the Workers' members last year referring in particular to Law No.
50 of 1990) as well as in practice. The Government interfered in
union activity because of the legal obligation imposed on unions to
invite officials of the Ministry of Labour to attend their general
assemblies. These officials went to the extent of asking all workers
to present their identity papers when a vote was being taken to call
a strike. In these circumstances the trade unionists felt obliged to
meet secretly at night to avoid reprisals. Even if the new legislation
gave automatically legal personality to unions the Ministry has continued
to give its approval in a discretionary manner. The extended
use of short-term contracts (between 15 days and 3 months) constituted
a serious impediment to freedom of association because the
workers involved recognised that their contract would not be
renewed if they became members of a union. The great majority of
strikes were declared illegal including those that took place in
services that were clearly not essential. That was the case during the
strike at Ihe Hotel Teguendama following the dismissal of 24 workers
when agreement could not be reached in the context of the proceedings
signed to settle the labour dispute. Recently, trade union
leaders were criminally tried for sabotage and their case given to
"anonymous" judges having jurisdiction over cases of terrorism, for
having called a strike in a telecommunications organisation. In
addition, 27 workers were threatened with dismissal and the president
of the organisation concerned as well as the Minister of
Labour requested the withdrawal of the legal personality of the
union and the suspension for up to three years of the trade union
officers. In the oil sector a union was fined millions following a
strike. In many instances strikes were called to ask for the right to
life of union leaders. Finally, in view of the many grave violations
of freedom of association in the country the speaker requested that
this case be mentioned in a special paragraph of the report.
Another Workers' member of Colombia stated that the right to
form unions did not exist in Colombia in law and in practice
because of the elements he would enumerate which were direct and
indirect threats to freedom of association. Employment contracts
were given in the form of civil or commercial contracts; contracts of
very short periods, which actually numbered 1,050,000, were permitted;
the right to appeal decisions concerning requests for reemployment
of workers with ten years of service but who were dismissed
without reason; a grace period of ten years was given to
enterprises during which they did not apply the same bargaining
unit to all their subsidiaries, thus weakening the results of collective
bargaining which would have been beneficial to trade unions; temporary
work was facilitated and the establishment of organisations
providing such services was promoted which hindered unionisation;
collective agreements were concluded with non-unionised
workers; Law No. 60 and its implementing decrees created systems
of dismissal and mass retirements based on blackmail promoting
retirements with negligible compensation for employees of the
State (400,000 such retirements and dismissals are expected in the
27/50
coming two years); all public services, including land irrigation, the
production of cement, the financial and petroleum sectors, were
declared essential services with a view to making all strikes illegal;
recently employers were permitted to make complaints under criminal
law in the case of strikes in order to hinder the enjoyment of
the right to work; penalties equivalent to minimum wages of 80
months were imposed on the petroleum workers' union for having
organised two to three hours of work stoppage; strikes were considered
crimes of terrorism and were submitted to "anonymous" judges
during which procedures access to files was not permitted. Given
the fact that laws and the practice in the country were not in conformity
with the Convention and no progress has been observed
and 102 trade union members and leaders were assassinated in the
past year, the speaker requested that this case be mentioned in a
special paragraph and that the ILO should provide technical assistance
in the drafting of future labour legislation.
A Workers' member from Spain stated that the improvements
in the laws mentioned by the Committee of Experts should be
assessed in the context of the low level of respect given to union
rights in the country. The speaker felt that provisions in the law
regarding the supervision of the internal management of unions
including the presence of public servants in the general assemblies
were unacceptable because they indicated the prevailing lack of
confidence in unions and the fact they were objects of suspicion
unlike other organisations. He stated that unions were not anomalies
in society but were necessary elements for progress in the country
as indicated by the past 40 years of tripartism in Europe. In addition,
he found the prohibition of strikes by federations and confrontations
was unacceptable because the Convention gave the same
rights to these organisations as it did to trade unions in general and
constituted an essential part of freedom of association. Referring to
the statements of the Minister of Labour on the interpretation of
the right to strike made by the Committee of Experts he rejected
the view that these interpretations were conjured up by them and
said on the contrary that the Experts were as indispensable as judges
and lawyers were to giving meaning to constitutional rights.
Finally, he stated that a government that did not guarantee the right
to life was not worthy of the name. He pointed out that in Colombia,
as previous speakers indicated, trade unionists were assassinated
and tortured constituting grave ciolations of the Convention.
A Workers' member of Greece denied that trade union rights of
foreigners were restricted in all countries for reasons of threats to
the security of these countries and sighted the cases of Belgium and
Germany where immigrant workers were part of the trade union
leadership. The question of internal security in the context of a
strike arose only with respect to certain particular sectors. He urged
that the legislation be put in conformity with the Convention and
that the Government should indicate its intentions in this regard
and request the technical assistance of the ILO.
A Workers' member of France stated that the interventions previously
made by the Colombian trade unionists demonstrated, if it
was still necessary to do so, the extent of the difficulties with which
the trade union movement was presently confronted in Colombia.
He noted the limitations on trade unionism in this country; the
problem of foreign workers, raised by the Workers' member of
Greece; that of part-time workers, the number of which was constantly
increasing; and the interference of political power in the
trade union movement, notably through the presence of authorities
in general meetings held to take strike votes. In respect of the
request of the Employers' spokesman that the ILO adopt a Convention
concerning the right to strike, he stated that this was not the
ideal time to discuss the report and the views of the Committee of
Experts concerning the scope of freedom of association. The right
to freely organise their activities and to formulate their programme
of action, provided for in Article 3 of the Convention, was a prerogative
of trade union organisations, and for this reason since 1919
one had refrained from curbing or limiting its application by means
of a Convention. The strict framing of the right to strike must be
avoided and the provisions of the Convention respected. The
Workers' member of France emphasised that the best way to assist
the Government to develop legislation was to formulate firm
requirements in the conclusions of this debate.
A Government member of Germany refered to the comments of
the Committee of Experts on this case, and the written statement
made by the Government and said that there were no means to verify
many of the events described, and, although these matters were
quite shocking, they did not constitute the matters upon which it
was necessary for the Committee to pass judgement. He noted that
considerable progress had been made, although there remained significant
discrepancies between national legislation and the
Convention. However, he emphasised that this view did not apply
to everything that had been said, nor to all the findings of the Committee
of Experts concerning restrictions placed on the right to
strike in the public service.
Another Workers' member of Colombia stated that in his country
there was neither justice, democracy or free trade unionism, and
that he was required to speak before the Committee, because to
remain silent would be to betray the confidence of those who had
sent him to the Committee to defend their rights. In his country.
there existed a so-called anonymous justice, which permitted the
judging of someone without his knowing who was judging, who was
accusing or of what one was accused. A number of trade union leaders
of the national telecommunications company who has engged in
a strike when it wanted to privatise the enterprise, were being
judged today by anonymous judges. This year, at the time of the
500th anniversary of the discovery of America, indigenous persons
had been murdered because they were looking for a bit of land
where they could work, land which always had belonged to them.
He considered that the Government of Colombia deserved to have
the case of this country included in a special paragraph.
A Workers' member of Uruguay referred to the consequences
of the policy of indiscriminate rationalisation and privatisation of
public enterprises. He stated that the right to strike was an inalienable
right, the tool which workers had in order to defend themselves,
and for this reason restrictions on this right meant that there
would be a reduction of its most important means of defence. With
reference to that which had been stated by the Government representative
to the effect that it would be appropriate to adopt an
international labour standard on the right to strike, he asked whether
what the Government representative wanted was to impose
restrictions, and indicated that the Committee on Freedom of
Association has stated that limitations on the right to strike could
only be justified in cases in which strikes ceased to be peaceful. He
recalled that in Colombia trade union leaders had been murdered,
strikes were prohibited, there was no freedom of association, and
Convention No. 87 was being contravened; he therefore asked the
Committee to include the case of Colombia in a special paragraph.
The Government representative stated that his country guaranteed
freedom of association to foreigners, but it was another matter
to permit a group of foreigners to be able to dominate a trade
union and to declare a strike. Regarding the clear constitutional
definition in respect of the right to strike, he indicated that the Constitution
guaranteed this right except when essential services were
involved, but that such services still had not been determined: this
was a task for Congress. He considered that the situation regarding
the right to strike was different according to the country in question.
and according to its development. The reference which he had
made to the possibility of adopting an instrument of this nature did
not mean that his Government wished to limit the right to strike.
This right had been found to be limited, even by the Committee of
Experts; for the Committee, the freedom of association which had
been established did not allow strikes in essential public services, or
in the public administration. The purpose of his proposal that an
international instrument be adopted on the right to strike was to set
out the limits for this right. In reference to the intervention of the
Workers' member of Spain to the effect that his Government did
not respect the right to life, he emphasised that his Government did
respect the right to life, not only as required in international instruments
on human rights, but also under thé national Constitution,
and on behalf of his Government he fervently rejected this
allegation. He referred to the difficult situation in his country, an
excellent place for drug traffickers, but rejected the insinuation to
the effect that the murder of a number of indigenous persons was
owing to inaction on the part of the Government. His Government
was struggling against such circumstances, and it seemed that
other governments, for example Spain and the United Kingdom,
were experiencing similar circumstances in respect of terrorist
activities, without one being able to suggest that they did not
respect the right to life.
The Workers' member of Colombia stated that the Government
had not responded to the question which had been raised in respect
of the situation of the trade union movment, and reiterated his
question as to what were the essential public services in Colombia,
as the absence of definition in the legislation left the determination
of such services to the free will of the Government.
A Workers' member of Ecuador stated that he shared the different
opinions expressed in the Committee on the report of the Committee
of Experts, which had recognised that Colombia had made
some progress ii\ implementing legislation. Nevertheless, he
observed that in their interventions the Workers' members had
stressed the discrepancy between such provisions and practice. He
referred to the intervention of public servants at trade union meetings,
which according to the Government representative was
intended to guarantee the democracy of the decisions which trade
unions were adopting. In his opinion, this involved a clear violation
of the Convention. He considered that the Government had an
interest in eliminating such participation in trade union meetings,
and that such participation might lead to suspicion in the cases of
murders of trade union leaders, in that there could be established a
27/51
cause rnd effect relationship between these matters. The speaker
observed that presently the rights of workers guaranteed under
ILO Conventions appeared to be becoming fewer. In this context,
he clarified that trade union freedom which was not accompanied
by the right to strike as an indispensable complement was a nonexistert
freedom of association.
A Workers' member of Chile stated that Chilean trade unionists
had extensive experience in respect of restrictive laws on the trade
union movement. After having heard Colombian trade unionists
and th,ise exercising public power in that country, he considered
that he was confronted with a reality that was characteristic of Latin
America. The restrictive laws which existed in Colombia existed
in Chik and were characteristic of a dictatorship. He believed that
Colombia was a country that wished to improve the institution of
democracy, but which could not do so without the workers. Free
workers not only exercised the right to strike but also constructed
peace together with employers and politicians. He wished that the
Government representative would say whether the authorities really
had the will to respect the Convention. He hoped that in 1993
they w::iuld not speak more about murders, and that Government
representatives would not need to give explanations. He also hoped
that in the coming year the Government would show more respect
for the rights of workers and human rights, so that workers could
play ar appropriate role in the development of their country.
A Workers' member of Greece stated that there must have been
a misunderstanding, because no one had confused political power
and judicial power. The latter, in all democratic countries, involved
only the interpretation and the application of laws. The Government
was reque5ted to change national legislation in order to bring
it into conformity with the Convention. In addition, he asked the
Government whether it intended to request technical assistance
fror:1 the ILO for this purpose.
The Workers' member of Spain referred to the intervention of
the Government representative. He indicated that the essential difference
between what was occurring in Spain and Colombia was
that in Spain, it was known who was committing the murders and
acts of terrorism. The State was taking responsibility for the elimination
of such murders and had succeeded in reducing their
number. He requested the Government representative to respond
to two questions: when was the control which the administration
exercised over the trade union movement by the presence of a public
servant at trade union meeting going to disappear, and when was
it going to recognise the confederations and the right to hold
strikes?
The Workers' members stated that the Colombian Workers
members' had provided useful information in describing the types
of strikes that were banned as "essential services", such as those in
the hotel and oil industries. They noted that such an interpretation
of "essential services" was not a correct application of the principles
of the Convention. They agreed that there was a generally
accepted distinction between government and judiciary in such
countries: the Government established laws while the judiciary
applied them, but he emphasised that if the law was wrong, the
Government could not use the judiciary and its independence as an
excuse for lack of action. In their view, the law was wrong and needed
to he changed. The Government referred to acts of terrorism
which had taken place in Spain, the United Kingdom and the L:SA
which infringed upon the right to life. The Workers' members stated
that if hundreds of trade unionists disappeared and even worse
were killed every year in those countries, there could be no doubt
that these facts would be of concern to this Committee and the subject
of considerable discussion. There were death squads operating
in Colombia that were killing trade unionists, and this fact could not
be ignored. They declared that they did not believe that it would be
helpful to re-open the debate on Convention No. 87 and the right
to strike. They noted that a resolution in respect of this issue had
been placed on the agenda of the Resolutions Committee, and had
been given low priority. In their view this was an indication that
both Workers' members and many governments at this Conference
felt ,hat the more detailed examination of these issues would not be
helpful and certainly the work of the present Committee might
become chaotic during the course of an examination which could
take rr.any years. Governments who had .been strictly following
interpretations of the Committee of Experts on the right to strike
would begin to doubt the correctness of their application of the
Conve'.ltion if the principle became the subject of lengthy
examination. The Committee of Experts' stated view on the issue
had been clear for decades and had not been challenged except in
the ;ast year or two by the Employers' group and now the Government
of Colombia.The Workers' members suggested that the Government
be asked whether it could be prepared to accept technical
assistance from the ILO. Although they had seen the first signs of
movement towards conformity with the Convention, they stated
that they wished the conclusions of the C::immittee to be strong
enoagh to establish that the Government still has a considerable
27/52
way to go before they were fully in conformity with the Convention.
The Employers' members stated that, despite the many problems
faced by its country, the Gover::ment had managed to take
positive steps in respect of the Convention, which had caused the
Committee of Experts to note his casi.: as where progress had been
made. In reference to the distinction made between law and interpretation
of the law, they noted that where the law was unclear or
contained loopholes, the interpretation of the law became independent
as it stepped in to clarify and apply the law. This was also true
of Convention No 87, in respect of which a body of case law had
developed which was extremely favoi.;::-able to the wor:(ers' case in
the present situation, although in their view the content of this case
law could not be derived from the Convention. However, as the
Committee of Experts had made lengthy statements about the right
to strike and restrictions on this right. they must be addressed by
this Committee.
The Committee took due note of the written and oral information
provided by the Government. It a'.so took note of the progress
being made in conformity with the Convention, and it felt bound to
recall that there still were different points raised by the Committee
of Experts where the law was in conflict as the Convention. The
Committee noted, however, that the Government was settling up a
tripartite commission to prepare a draft Bill which the Government
intended to bring before Padiament. It also took note of the
Government's willingness to ask for :echnical assistance from the
ILO. The Committee remained concerned about the situation- not
only the legal one - existing in the country. It therefore urged the
Government to take all necessary steps to bring the legislation into
complete conformity with the Convention at its earliest convenience
in order that the Committee could make a full assessment of
the same at its next session.
Document No. 253
ILC, 79th Session, 1992, Report of the Committee on the
Application of Standards, pp. 27/58-27/59 (Honduras)
~ Ì International Labour Conference J À
^ j Provisional Record
Seventy-ninth Session, Geneva, 1992
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Pages
PART ONE: General Report 2
PART Two: Observations and information concerning Particular Countries 21
I. Observations and information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 21
A. General Observations and Information concerning Certain Countries 21
B. Observations and Information on the Application of Conventions 25
C. Table of Detailed Reports on Ratified Conventions 92
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) . . . . 93
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 94
A. General Observations and Information concerning Certain Territories 94
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 95
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 96
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) . . . . 98
Reports received by 22 June 1992 relating to Conventions Nos. 26, 99 and 131 and Recommendations
Nos. 30, 89 and 135 98
Reports received by 22 June 1992 relating to Convention No. I l l 98
Index by Countries to Observations and Information Contained in the Report 99
27/1
Honduras (ratification: 1956). The Government supplied the
following
information:
The Government is aware of the need to reform its Labour
Code with a view to bringing it into conformity with ratified
Conventions and social developments in this field. The
Government's will as concerns these changes has been expressed
by the President of the Republic on different occasions; this
interest has been translated into the creation of a Special
Commission, in which the Gover 1ment's will to make these
changes as well as all those which arise en tripartite level to the
extent possible, with the intent to secure agreement of all the
interested sectors. The Government has at the same time
implemented a project entitled '"Modernisation and in5titutional
reinforcement of the labour administration in support
of the
economic reorganisation programme", of which this Special
Commission has knowledge. The objectives of this project
correspond with those of the Special Commission. The Government
nevertheless understands the Committee of Experts' preoccupation
with the period of time - many years - which has elapsed
since the Committee's first observation without the necessary
amendments having been accomplished. The Government will continue
to regularly inform the Committee of Experts on the
progress which it has achieved.
Jn addition, a Government representative, the Minister of
Labour and Social Welfare, referred to the enormous and serious
problems faced by his country in all areas. He indicated that his
Government generally encouraged dialogue and consultations in
all sectors. Referring to the observations of the Committee of
Experts he pointed out some contradictions that existed between
certair articles of the Labour Code and the provisions of the Conventio1
even though these contradictions might only relate to
mir.or points. For example, it was a requirement to obtain the consent
of a certain percentage of workers or, in some public
enterprises,
the approval of certain authorities before calling a
strike. However,
the right to strike was not prohibited. The
Government has decided that the adoption of a new Labour Code
or the substantial reforrr of the existing one should be based on
and the product of consultations in the country as it was useless
to legislate arbitrarily or adopt idealistic standards. In doing this it
was necssary to take into account the suggestions of the
Committee of Experts as well as the asistance offered by the ILO.
Two very productive seminars, which helped bring out the initial
cooperation required from the different sectors, were conducted.
A tripartite committee chaired by the Deputy Minister of Labour
has been established in order to change the structures of
Honduran labour legislation and to follow up the comments of the
Committee of Experts and its results would he seen in the course
of this year. Finally, he indicated that the Gov-
27/58
ernment would be sending its observations along with conclusive
evidence on the complaints pending before the Commit:ee on Freedom
of Association and expressed the desire to cooperate with the
lLO as requested.
The Workers' members we.corned :he information provided by
the Minister concerning the setting up of a tripartite Committee to
advise on the changes that need to be made to the Labour Code to
put it into full conformity with the Convention. They also welcomed
the information about the Government's consu:tations with
the !LO on these questions. While all these were encouraging
developments, they recalled that the Committee of c:xperts had
been making its comments on this qucqion for many years now and
no legislative measures have yet been adopted to amend the
Labour Code. Referring to the strong language used hy the Committee
of Experts in its report, they emphasised to the Government
the need for it to examine these comments, including the seven specific
areas in which the Comr.iittee o: Experts found the existing
Labour Code to require amendments to bring it into line with the
provisions of the Convention. In view of past long delays in this
case, they strongly urged the Government to do its utmost to adopt
legislative texts to amend the Labour Code as soon as possible as
well as to ensure their full application in practice.
The Employers' members considered that the seven points figuring
in the Committee of Experts' comment did not h;;ve the same
weight. The ban on workers employed in small agricultural undertakings
and stock-raising ente,prises form joining a union, the ban
on more than one union per enterprise, or the requirement that
trade union leaders be engaged in the occupation or profession represented
by the union for more than six months violated the very
text of the Convention. The Employers' members were therefore
in agreement with the comments made on these points by the
Experts and considered, like them, that the Government should
take the necessary measures to bring its legislation into conformity
with the Convention. They also expressed the hope that the Government
would amend the legislation in the near future. However,
the other points criticised by the Cor.imittee of Experts could not
be directly based on the Convention. When the Convention was
drawn up in 1948, the question of introducing the right to strike, for
example, had not been retained in the text. The comments of the
Committee of Experts on national legislation in relation to essential
services and other aspects of the right to strike were not therefore
founded on the Convention itself. As regards the legal requirement
of a two-thirds majority of a union's general assembly for calling
a strike, the Employers' members noted that, in many countries,
the majority required for calling a strike was governed by legislation
or through trade union statutes. and that in any case when
trade union statutes were silent on this point, it was for the State to
determine the parameters since every strike involved some
disruption. The definition of the required majority was a national
question which had to be settled by the law and practice of the
country. In the light of these considerations, the Employers' members
did not share the Experts' opinion that the requ:rement of a
two-thirds majority of a union's general assembly for calling a strike
constituted a violation of a Convention.
The Workers' member of Honduras confirmed that a tripartite
commission for the revision of the Labour Code had in fact been
designated for bringing the Code into conformity with the Convention,
along the lines of the comments of the Committee of Experts,
but with one exception: the recommendation that more than one
enterprise union be allowed to exist in the same enterprise, institution
or establishment. In fact. compliance with this recommendation
would open the doors in Honduras to the serious phenomenon
of solidarist organisations, which some employers were trying to
introduce to take over the activities belonging of trade union
organisations. He indicated that. in 1991, the Confederation of
Honduran Workers had signed a document with the President of
the Republic in search of an i:nmcdiate process for the revision of
the Code so as to prevent the rise of solidarism. Subsequently, the
employers' and workers' orga:1isations had presented amendments
along these lines to the competent authorities. Finally, he stressed
that a final date hould be fixed for completion of consultations on
the various revisions of the Labour Code, and stated that if cooperation
did not succeed, the Government would have to take the
appropriate decisions.
The Government representative stated that the Government
saw no problems with submitting the Committee of Experts'
recommendations to Congress. He repeated his earlier statements
on the need for cooperation which would lead to the processing of
the reforms, because the contents of some of them could be subject
to controversy between workers and employers.
The Committee took note of the information supplied by the
Government. It welcomed the progress which was being made, in
particular in relation to the reform of the Labour CoC:e which was
being prepared. However, it recalled that the Committee of
Experts had been drawing the Government's attentior- to the legislative
provisions requiring revision and yet until now such revision
had not occurred. Consequently, the Committee expressed the
hope that the Government would very rapidly be able to have the
necessary reforms adopted and that it would send the relevant texts
to the ILO.
27/59
Document No. 254
ILC, 79th Session, 1992, Report of the Committee on the
Application of Standards, pp. 27/59-27/60 (Kuwait)
~ Ì International Labour Conference J À
^ j Provisional Record
Seventy-ninth Session, Geneva, 1992
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Pages
PART ONE: General Report 2
PART Two: Observations and information concerning Particular Countries 21
I. Observations and information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 21
A. General Observations and Information concerning Certain Countries 21
B. Observations and Information on the Application of Conventions 25
C. Table of Detailed Reports on Ratified Conventions 92
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) . . . . 93
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 94
A. General Observations and Information concerning Certain Territories 94
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 95
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 96
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) . . . . 98
Reports received by 22 June 1992 relating to Conventions Nos. 26, 99 and 131 and Recommendations
Nos. 30, 89 and 135 98
Reports received by 22 June 1992 relating to Convention No. I l l 98
Index by Countries to Observations and Information Contained in the Report 99
27/1
Ku wail (ratification: 1961 ). A Government representative
referred to the reasons why the Government had not been able to
implement the Convention, and stated that the Government had
started, on its return home last year, to look into the observations
of the Committee of Experts. Kuwait had set up a committee in
order to carry out a final study on the possibility of drawing up a
draft Labour Code, in consultation with the General Federation of
Kuwaiti Workers and the Chambers of Commerce and Industry,
taking also into account the observations of the Committee of
Experts. This committee had finished studying the draft Code
which was being submitted to the legislative authorities. Labour
relations had gone beyond Act No. 38 of 1964: workers had been
able to enjoy their rights through bilateral negotiations and
collective
agreements which had been authenticated by the
Ministry of Labour and Social Affairs, and had become a
referral point for courts. Under section 13 of the Act, workers
and employers have the right to organise. Another element
clarified by this Act was the role of these organisations. The law
recognises the right of workers to freedom of association and the
right to organise, and therefore made trade unions legitimate and
legal from the point of view of the law. The speaker emphasised
that Kuwait had made great strides in developing labour relations
and the trade union movement, as well as the protection of
workers' rights and the improvement of conditions
of work, in
accordance with provisions of the Convention. The Ministry of
Labour and Social Affairs no longer had wide powers of
supervision. The Ministry was confined to give assistance that
trade unions might require from the Government. The Ministry
also had the right to control any activity which may be contrary to
national law. As to the eligibility of non-Kuwaiti workers to hold
trade union office, the text of the Act does not expressly prohibit
them from being elected or from holding trade union office in
accordance with Chapter 3, section 72. Concerning the system of a
single trade union, in order to protect the rights of workers the
Government
had enabled workers to set JP more than one trade
union. In relation to workers' grievances, the settlement of labour
disputes and the imposition of arbitration, he indicated that Act
No. 38 provided
that workers' complaints might be settled on a
bilateral basis. The trade union is authorised to act on behalf of
workers in accordance
with this Act, but the Act is not
applicable to employers' complaints against workers. The
decisions of the arbitration body are final and binding. Since
labour disputes are delicate and sensitive
issues which require
rapid resolution, they are dealt with by a subsidiary body of the
court of appeals, referred to in section 88 of the Act, following fair
and just procedures, in accordance with the Convention.
The Workers' members stated that this case had been discussed
in the Conference Committee in 1981, I 982 and 1983. The Committee
of Experts in its report referred to the Government's information
to the effect that the Convention had helped to strengthen
freedom of association and trade union organisation, develop
union activities and orient trade union freedom towards its goals
in terms of defending workers' rights: it also referred to a new
draft Labour Code. However, since the legislative and practical
position had not changed, the Committee of Experts recalled the
current divergencies, including provisions on trade union
monopoly, restrictions
on union activities for foreign workers,
supervisory powers of the authorities as to the functioning of
union organisation and above all restrictions on the free exercise
of the right to strike.The Workers' members also felt it necessary
to express their view on the right to strike so as to maintain
balance in the report and for the future work of the Committee,
since :he Employers' members spokesman
had continually during
the examination of individual cases mentioned this to explicate
the Employers' attitude. The Workers' members repeated clearly
and unequivocally their support for the Committee of Experts'
interpretation of the right to strike, both as regards the right to
strike in general, 701 only as concerned the way in which it was
carried out, but also possibly limited. They considered
the
Experts had correctly applied working methods and principles
referred to in paragraph 6 of their general report. The right to
strike in principle and as it is practised under the law was an
essential means of realising trade union freedom. It was also a basic
ingredient of trade union freedom. The Committee of Experts'
opinion
was not new, and it had been known for many years; the
Committee
of Experts repeatedly confirmed it in its report. Their
view was founded on case law of the tripartite Committee on
Freedom of Association and there was no reason to change the
established views. Contrary to the Employers' members'
spokeman's ideas, universality of standards does not allow
selective interpretation of freedom of association and the
elements making it up - including
the right to strike - according to the political system or the economic
or social situation of a given country. The Workers' members
reiterated their position in the discussion of problems related to the
exercise of the right the stike in Kuwait. Referring to the Government
representative's statements that the Government was trying
to improve the situation, and that a draft Code had been prepared,
the Workers· members thought it necessary for the Government to
transmit without delay information for examination by the Committee
of Experts on all points mentioned in its report to the Offi:
ce, so that the Conference Committee could follow developments
and examine the case again next year.
The Employers' members recognised the extraordinary circumstances
that the Government had faced in the past few months and
appreciated the rapidness with which it had come back to this issue
and had proceeded to submit a draft Code to the legislature. They
considered that the Government should submit a copy of the draft
legislation to the !LO in order for the Committee of Experts to
have a better appreciation of the degree to which the requirements
of the Convention were met. As regards the right to strike, they
recalled their position that the finding of a detailed regulatory scheme
relating to the right to strike is not appropriate under Convention
No. 87 because the words "right to strike" do not appear in the
text of-the Convention. The Conference Committee, in deciding
not to consider the controversial issue of the right to strike, simply
did not address it and made clear that the instrument deals with
"freedom of association and not the right to strike." The
Employers' members recalled the remarks they had made in 1991
that many of the decisions and interpretations of the Committee of
Experts were drawn from decisions of the Committee on Freedom
of Association, and that the latter Committee was not limited to the
words found in Conventions Nos. 87 and 98 and was in a position to
espouse general principles. They therefore noted their reservaion
with respect to the right to strike and the Experts' findings, in particular
that restrictions could not be placed in the case of strikes in
the essential services in the strict sense of the term. which they
considered going too far in terms of what Convention No. 87
contemplates. With the above-mentioned reservation, the
Employers' members associated themselves with the comments of
the Workers' members and hoped that the Government would
soon be on a position to report that it is conforming with the requirements
of the Convention.
A Workers' member of France stated that the case had been discussed
for several years and referred to the situation of migrant
workers, a large part of the workforce. Since restrictions on freedom
of association concerned these workers' it might be considered
in Kuwait very few people could join a union. The very
nature of political power was undemocratic; far from being democratic,
the regime was feudal: promised amendments had not been
made, migrant workers were subject to restrictions, compulsory
service at will, and placed outside legislation. The Government
should make it clear whether proposals for amendments would
explicitly eliminate discrimination against foreign workers. As
regards the right to strike, the speaker stated that it was part of
international labour standards and any government which undertakes
to observe the Convention must also observe the right to strike
for all categories of workers.
A Government member of Germany associated himself completely
with the previous speakers as regards the current case. On
the other hand, his agreement on the conclusions which the Committee
will adopt in this case did not extend to all aspects of the
interpretation of the Convention advanced on various sides.
A Workers· member of Italy considered that Kuwait had made
insufficient efforts to observe the Convention, although during
recent events it promised to democratise and freedom of association
was an essential part of this. Failing observance of the Convention,
democracy was a long way from being realised. The role of
unions was essential for reconstruction of the country on a more
just social basis. Prohibition of political activities for unions contradicted
their very political participation in liberation of the country.
The majority of workers' dependants were migrants and their freedom
of association was restricted if such workers could not join
unions of their choice. As Kuwait had huge resources. the Government
could adopt legislation in conformity with the Convention.
The Government representative emphasised that great progress
had been made in his country. which has a legitimate Constitution
approv(!d by the people. under a democratic, and not fuedal,
Government. General elections are scheduled for October 1992 for
the people to choose their representatives in Parliament which will
guarantee the legitimacy of the Government. As regards migrant
workers, he stated that about half a million foreign workers had
come back to Kuwait. Concerning the single trade union system, he
indicated that there were several trade unions representing
employees not only in banks or industries but also in ministries;
foreign workers are also allowed to join these trade unions. He
recalled his initial statement that there was no prohibition on affi-
27/59
lation to trade unions, and also stated that there were people of 80
different nationalities in the country. Numerous strikes had been
organied even in the public sector, and the Government did not
intervene to stop these strikes or to arrest representatives of workers
fo 0 acting in an undisciplined manner. The Government merely
called on the two parties to attempt to settle the dispute. Numerous
collective agreements had been signed to settle disputes that
had bc-:n expressed through strikes. As to the role of supervision
that the Government undertakes on trade union affairs, the Ministry
of Labour and Social Affairs provides subventions to all representative
associations, to trade unions and private voluntary
orgwisations. While the Government supervises the use of this
assistance, trade unions have every right to undertake any activities
they wish. He declared that the Government would make every
effort to submit sufficient information concerning the application
of the Convention and to include the revision of the Labour Code
among the priorities in the legislative authorities for reorganising
the society of the country.
The Workers' members rather had the impression that legislation
in general and more particularly the aspects touching directly
or indirectly on the rights of migrant workers do not figure in the
priorities of the Government.
The Committee noted the information supplied by the Government
representative. It acknowledged the difficulties the Government
had been meeting recently, but it felt bound to recall that the
subject matter had been a point of concern in the reports of the
Comm'ttee of Experts for many years and it was disappointed on
account of the Government arguing its case referring to a Law dating
from 1964, although that Law had been taken fully into account
by the Committee of Experts. On the other hand. the Committee
was under the impression that progress seems to be made in bringing
the legislation in the diretion of full conformity with the
Convention. In order that the Committee of Experts can make a
full assssment of the situation, the Committee expressed its hope
that the Government would send the copy of the draft Labour Code
to the ILO and suggested the Government might ask the assistance
of the Office in this respect.
27/60
Document No. 255
ILC, 79th Session, 1992, Report of the Committee on the
Application of Standards, pp. 27/62-27/63 (Panama)
~ Ì International Labour Conference J À
^ j Provisional Record
Seventy-ninth Session, Geneva, 1992
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Pages
PART ONE: General Report 2
PART Two: Observations and information concerning Particular Countries 21
I. Observations and information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 21
A. General Observations and Information concerning Certain Countries 21
B. Observations and Information on the Application of Conventions 25
C. Table of Detailed Reports on Ratified Conventions 92
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) . . . . 93
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 94
A. General Observations and Information concerning Certain Territories 94
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 95
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 96
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) . . . . 98
Reports received by 22 June 1992 relating to Conventions Nos. 26, 99 and 131 and Recommendations
Nos. 30, 89 and 135 98
Reports received by 22 June 1992 relating to Convention No. I l l 98
Index by Countries to Observations and Information Contained in the Report 99
27/1
Panama (ratification: 1958). As regards certain points cited in
the observation of the Committee of Experts, the Government
sends the following documents:
1. Draft Law No. 70 "Providing for the Establishment and regulation
of the Civil Service";
2. Resolution No. D.M. 23/92 of 21 May 1992 which reduces the
number of documents required for the recognition of social
organisations.
In addition, a Government representative, referring to the point
in the observation of the Committee of Experts on the application
27/62
of the Convention with regard to th:: exclusion of public servants
from the scope of the Labour Code. which is found in Chapters 1
and 2 of Title Xl of the Constitution of Panama, indicated that a Bill
on administrative careers had been tabled in the Legislative Assembly
for study and approval. The Government intendeC: to grant civil
servants a legal framework in conformity with the principles of
the merit systems as well as other rights and obligations ensuing
from constitutional provisions and corresponding to the provisions
of the Labour Code which were apolicable to the private sector.
With regard to the requirement of "an excessively high number of
members required to establish trade anion organisations" and that
of "75 per cent of members of trade unions who were required to
be Panamanian" raised by the Com1c1ittee of Experts in its observation,
their potential amendment was likely to be considered in a
tripartite debate within the framework of cooperation in the social
and labour sectors initiated by the Government. This consultation
and the subworking groups that had been set up within it formed an
appropriate framework to improve the Labour Code in conformity
with ratified international labour Conventions. This measure was
also intended to improve national production and the general conditions
of workers and employers as well as to improve the possibilities
to create new sources of employment. The question qf "the
automatic removal from office of a trade union officer in the event
of his dismisal" was also being discussed within the framework of
the cooperation process. This removal applies only to the leaders of
unions at the enterprise-level, who must be employed at the
enterprise. The removal docs not apply to the sectoral unions, federations,
confederations or trade union centres. As regarded the
authorities' wide powers o: supervision over the records of
accounts of trade unions, it would be appropriate to point out that
Resolution No. 23/92 of 21 May 1992, which reduced the number of
documents which were necessary for the recognition and functioning
of social organisations, restricted and regulated in an appropriate
manner section 376, subsection 4, of the Labour Code, to take
account of the previous observations of the Committee of Experts.
As concerned the observations on Act No. 13 of 11 October
1990, it was important to emphasise the temporary and exceptional
nature of this measure which was justified by a stabilisation policy
to bring about economic recovery. This Act had not prevented
the negotiation ofsix collect,ve agreements in 1990 nor the adoption
of nine other collective agreements through direct negotiations
in 1991. Moreover, it had not prevented strikes but had simply
introduced arbitration after consultation with workers to prevent
the closure of the enterprise and the loss of employment in the case
of prolonged strikes. Act No. 13 had to be re-examined within the
framework of the labour management consultation process in order
to rapidly re-establish the exercise of collective bargaining in conformity
with international labour Conventions. As for the Public
Order Act No. 25 of 14 December 1990, its provisions ceased to be
in force on 31 December 1991. It had not been established that "an
important number" of workers had been dismissed: that Act only
affected public employees who had commited acts of violence
towards other public employees or consumers of public services
and who had damaged the installations and property of the State in
non-union activities, as was the case of two public enterprises; and
not because they were trade union leaders. However, the number
of workers who had been dismissed only represented 2.3 per cent
of the employees in each of these two enterprises. Numerous dismissed
workers 107, in the Water and Electricity Institute (IRHE)
and 37 in the National Telecommunications Institute (INTEL), had
appealed before the competent courts which paved the way for full
jurisdiction administrative proceedings which had to be settled by
the appropriate chamber of the Supreme Court. Detailed information
in this respect had been submitted to the Committee on Freedom
of Association (Case No. 1569) and in the supplementary
reports on Conventions Nos. 87 and 98 presented in January 1992.
The Workers' members stated that the Conference had examined
this case in 1981, in 1988 and in 1991. The long examination
that had taken place the previous year had led to a conclusion which
was put in a special paragraph of its report. Other than the points
that were already well known, the Committtee of Experts also noted
this year that more recent laws contained restrictions on the
right to strike and provided for anti-union measures against public
servants. The situation in law and in practice did not seem to have
changed from last year. The only new element consisted in the
"agreement on cooperation in the social and labour sectors" concluded
between employers, workers and the Government in
December 1991, which should allow for the beginning of consultations
which would lead to an eventual amendment of Act No. 13 of
1990, restricting the right to strike. The content of the texts mentioned
in the written communication by the Government appeared
to be obscure. However, a slight ch2.nge in the Government's attitude
was noticeable in that it seemed to be more positive this year
than during the debates that took place in 1991. The Government
- as indeed certain other governments notably in Latin America -
gave the impression of wishing to com:)[y more with the supervisory
bodies. This intention of the Government to proceed with certain
changes had not resulted in any real progress in practice. It
would also be appropriate to insist that the initiatives annouced
result in an actual amendement of the legislation on all the points
raised by the Committee of Experts for many years, notably on the
elimination of state intervention in trade union internal affairs, the
elimination of the requirement with regard to nationality, the guarantee
of freedom of association of workers in the public sector and
the respect of the right to strike. In view of the seriousness of these
issues which had been emphasised in the Committee's conclusions
of 1991 and having regard to the complexity of the information prov:
ded by the Government, a direct contacts mission from the ILO
could be envisaged. In the absence of a change in the near future,
not only in the intentions of the Government but also in reality, this
Committee would be forced to note once again next year the discrepancies
between stated intentions and actions.
The Employers' members indicated that their point of view differed
from that of the Workers' members on a number of points.
Concerning the substantive issues raised in this case, it was first of
all clear that the denial of the Tight of public servants to bargain collectively
constituted a flagrant violation of the Convention. The
information on their legal situation contained in the report of the
Committee of Experts and in the Declaration of the Government
representative was however somewhat confusing and it would be
appropriate if the Experts examined this question attentively once
again. To know if the requirement of a minimum number of 50
workers or of ten employers to establish an organisation was too
high, one could wonder what in fact was the right figue: the Committee
of Experts found it to be too high, the Government promised
to modify it but however the Convention did not say anything
on this matter. One should therefore be careful in prescribing specific
figures which in any case could only be arbitrary. On the other
hand, concerning the requirement that 75 per cent of trade union
members should be Panamanian, it was undeniable that there was
a clear infringement of the Convention which guarantees right to
freedom of association without any considerations of nationality.
The Government stated that this issue was going to be examined
and one would hope that this examiration would have a positive
outcome. As to the problem of the extensive supervisory powers of
the authorities on trade union activities, it was important to distinguish
between those powers that coulc lead to a real interference in
the internal affairs of the union and the simple verification of
accounts which according to the Government were intended to prevent
or punish abuse. The Committee of Experts itself recognised
that there could be an audit if a request was made by a tribunal or
by the majority of union members. U ilion members indeed had to
be protected against potential abuse and it would be appropriate if
minorities could also benefit from this protection. With regard to
restrictions on the right to strike, the agreement concluded in
December I 991 between the social partners and the Government
constituted a new and important clement. Last year the Employers'
members had already expressed their views on the way in which the
r:ght to strike had been interpreted by the Committee of Experts.
The Experts, however. did not take into account the new agreement
or the views of the Employers' members who had nevertheless
explained in detail the reasons for wr.ich the principles relating to
the interpretation oflhc Committee of Experts were not acceptable
to them. The Committee of Experts which in paragraph 6 of its
General Report said that it followed '.he "spirit of mutual respect,
cooperation and responsibility" in respect of its relations with this
Committee had however in the present case reiterated its previous
stance without adducing additional arguments. In short the
Employers' members were in complete agreement with the Committee
of Experts as to the extreme gravity of this case. but were in
complete disagreement as to certain elements of its analysis.
The Workers' member from Panama stated that he shared the
views expressed by the Committee of Experts in its observation on
the application of the Convention. The cooperation process that
had taken place had led to the hope that the problems that were
identified would be resolved. With regard to the questions examined
by the the Committee of Experts. although Act No. 13 had
been adopted in exceptional circumstances, its application had
been unilateral. A large number of workers had been dismissed
pursuant to Act No. 25 and the recommendations formulated in
that respect by the Committee on Freedom of Association should
be followed. In spite of his support for the consultation process and
his optimism as to its outcome. which should overcome the problems
in time for the following year's meeting of this Committee, the
speaker felt that it would be appropriate to continue to examine
this case. The ILO could assist in the revision of the labour legislation
in force.
The Government representative indicated that some of the
points examined by the Committee of Experts had been suspended
for a number of years but that the situation had been aggravated by
the provisions introduced in 1990 because of the exceptional events
that had taken place in his country. The Government had the firm
intention of finding a solution to all the problems raised by the
Committee of Experts. The consultation process constituted a particularly
appropriate framework to examine these questions
through dialogue between the Government and employers' and
workers' organisations. This dialogue did not only cover Act No. 13
but had the aim of revising the whole of the Labour Code. Reiterating
his previous declarations, the Government representative
communicated information related to collective agreements that
had been negotiated after the entry into force of Act No. 13.
The Committee took note of the written and oral information
provided by the Government from which it understood that a tripartite
consultation process had been started with a view to ensuring
that the legislation was brought into complete conformity with
the requirements of the Convention. At the same time, the Committee
had the impression that the progress made so far was still
limited. In view of the fact that the political situation in the country
had changed dramatically only a few years ago and that the new
Government found itself confronted with problems on the subject
matter, the Committee suggested to the Government to invite a
direct contacts mission from the ILO in order to reach the aforementioned
goal in the near future.
27/63
Document No. 256
ILC, 85th Session, 1997, Report of the Committee on the
Application of Standards, pp. 19/74-19/78 (Bangladesh)
International Labour Conference ^ Q
Provisional Record
Eighty-fifth Session, Geneva, 1997
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Page
PART ONE: General Report 2
A. Introduction 2
B. General questions relating to international labour standards 4
C. Reports requested under article 19 of the ILO Constitution 36
D. Compliance with specific obligations 50
PART TWO: Observations and Information concerning Particular Countries 59
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 59
A. General Observations and Information concerning Certain Countries 59
B. Observations and Information on the Application of Conventions 62
C. Table of Detailed Reports on Ratified Conventions 129
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 131
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 132
A. General Observations and Information concerning Certain Territories 132
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 133
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 134
IV. Reports on unratified Conventions and Recommendations (article 19 of the Contitution) - General
Survey on Labour Administration in respect of Convention No. 150 and Recommendation No. 158 135
Reports received by 17 June 1997 relating to Convention No. 150 and Recommandation No. 158 . 135
Index by Countries to Observations and Information Contained in the Report 137
19/1
19/74
Convention No. 87: Freedom of Association and Protection of the
Right to Organise, 1948
Bangladesh (ratification: 1972). A Government representative,
referring to the ,,b,cndliu11, rnaJe uy tht: Lommmce ot Lxpe1l,,
noted that freedom of association in Bangladesh was covered by the
Constitution and trade union legislation, the Industrial Relations
Ordinance (IRQ), 1969. The trade union law covered only the organized
sector, where between five and six million workers were
employed. Other economic sectors were covered by the Constitutional
provisions relating to freedom of association. Violations of
this right could be submitted to the Supreme Court of Bangladesh,
which was the highest judicial body in the country.
With reference to the right of association of persons carrying out
managerial and administrative functions, he noted that the IRO allowed
workers and employers to form trade unions without requesting
prior authorization. Union membership was open to persons
in factories, business, industries, shops and public sector
corporations. Public servants in the Department of Telephone and
Telegram and in the Department of Railways were also covered by
the law. However, public servants in other government offices were
not covered by the IRO. Moreover, persons in industrial and commercial
establishments performing managerial and administrative
functions could not join workers' trade unions. Such persons -who
comprised approximately two per cent of the workforce - could
form associations for the advancement of their rights and interests
in accordance with Article 38 of the Constitution of Bangladesh,
which gave every citizen the right to form an association or union
subject to reasonable restrictions imposed by law in the interests of
morality or public order. Persons carrying out managrial and administrative
functions in the private sector therefore enjoyed the
right of association.
On the question of the right of association of public servants, the
speaker reiterated the view that the legislation of Bangladesh was
in conformity with the requirements of the Convention. As stated in
the Conference Committee in 1995, even though public servants
were not covered by the IRO, they did have the right to form associations
in order to advance their interests. Such associations held
meetings, discussed the problems faced by their members and formulated
demands for submission to the Government for negotiation.
With regard to the exclusion of workers at the Security Printing
Press and of public servants from the right to form trade unions,
he maintained that the Constitution guaranteed their right to form
associations to advance their cau,e,.
The speaker noted that the observations of the Committee of
Experts concerning restrictions on the range of persons who could
hold office in trade unions had been answered by his Government
in the Conference Committee in 1995. He reiterated that, except
for workers dismissed for misconduct or convicted of the embezzlement
of union funds, moral turpitude or unfair labour practice, every
worker had the right to enjoy trade unions of their choice and to
hold elected trade union office regardless of their age, sex or creed.
Moreover, a worker dismissed for misconduct could seek redress
against the management in a court of law. The admission of dismissed
workers as either members or officers of trade unions might
hinder normal trade union activities, as well as industrial peace and
productivity, which might in tum frustrate the underlying purpose
of trade unions and collective bargaining. In Bangladesh, dismissed
workers were not elected to trade union office. However, section 7-
A(l )(b) of the IRO promoted rather than restricted their right to
choose their representatives.
In response to the observations of the Committee of Experts
concerning external supervision, he stated that the IRO conferred
certain quasi-judicial functions on the Registrar of Trade Unions.
However, any act of the Registrar could be challenged in a court of
law and the Registrar was not permitted by law to revoke the registration
of a union without prior permission from the labour court.
He did not agree with the observation made by the Committee of
Experts that the procedure of supervision by the Registrar of trade
union financial affairs should be subject to review by the competent
judicial authority affording guarantees of impartiality and objectivity,
since any act of the Registrar could already be challenged in a
court of law. Moreover, the constitution of a union at the time of its
union's registration was always respected.
The Government representative added that the requirement
that the membership of a trade union should consist of 30 per cent
of the total number of workers concerned before it could be registered
was necessary in view of the country's level of social, economic
and political development. This measure helped to check the
multiplicity of trade unions, which would affect adversely the interests
of the workers. Under the existing provisions, up to three unions
could be registered for each establishment. Moreover, the IRO
included provisions governing the determination of collective bargaining
agents. He did not consider that the 30 per cent requirement
restricted the right of workers to organize. However, measures
adapted to the situation might be taken in the near future. In
this connection, he pointed out that Convention No. 87 did not address
specifically the danger of a multiplicity of trade unions, but
was concerned that workers should be free to establish organizations
of their own choosing. If they formed too many organizations,
they would weaken their position.
On the question of the right to organize of workers in export
processing zones (EPZs), he stated that these workers were not deprived
of their fundamental right of freedom of association as guaranteed
under Article 38 of the Constitution. In the same way as
other developing "and tessdevcluping Luuiitric* which were «stab.
lishing EPZs for the purposes of economic development, Bangladesh
had suspended the right to form trade unions in EPZs ns a
purely temporary measure under the Industrial Relations Ordinance
1969. Indeed, workers in EPZs enjoyed better employment
and working conditions, higher wages and very congenia! labour
management relations. The fact that no complaint had yet been received
by the Government from any workers' association alleging
that workers in EPZs had been deprived of their rights meant that
they had accepted the reality of the situation. Any Convention was
ratified with some flexibility to suit national conditions and EPZs
were being developed in many other Asian countries. Economic
development required the estahlishment of EPZs. but not at the
cost of the social and economic welfare of workers. The Government
was very much aware of its responsibility towards its citizens.
He added that the Government of Bangladesh had noted the
observations of the Committee of Experts concerning restrictions
on the right to strike. Although appreciating the observation of the
Committee that it was mindful of the difficulties which might arise
during an acute national crisis, he recalled that sections 28, 32(2),
32(4), 33(1), 57, 58 and 59 of the IRO had been examined by the
National Labour Law Commission (NLLC), whose report was still
under study by the Government. He added that the Government of
Bangladesh would welcome the technical assistance of the ILO in
any field related to the implementation of Convention No. 87.
The Workers' members deplored the fact that, despite the Government's
statement in 1995, at the conclusion of which it had undertaken
to provide the Committee of Experts with detailed information,
little seemed to have been achieved on this subject. The
seven questions raised by the Committee of Experts were not new
and required the adoption of urgent measures by the Government
to bring the situation into greater conformity with the principles of
freedom of association. These matters had already been the subject
of exhaustive discussion in 1995, in the same way that related problems
concerning the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98), had been addressed in 1994. In general,
the Workers' members regretted that for many years the Committee
of Experts had needed to make observations on important matters
related to the fundamental principles of freedom of association.
In 1994 and 1995, the Government of Bangladesh had referred to
the discussions held in its tripartite national commission. It appeared
that this body had submitted recommendations on several
points, a number of which were contained in a Bill to amend the
legislation, which had not yet been adopted. Most of the criticisms
of the Committee of Experts in the case of Bangladesh concerned
matters that needed to be respected by every country, irrespective
of its level of social and economic development. These matters
were also related to the campaign of the Director-General to promote
the ratification and application of fundamental Conventions.
The Workers' members were aware of the economic and social difficulties
confronting Bangladesh.
Better collaboration between the public authorities and civil
society, including the organizations of workers and employers,
would contribute to combating poverty and social exclusion and
could promote social justice and peace. Indeed, many of the problems
relating to the application of the Convention had their roots
in the tension between the public authorities and civil society in
Bangladesh. With regard to the specific comments made by the
Committee of Experts, the Workers' members regretted that the
Government's report contained little relevant information on the
right to organize of persons carrying out managerial or administrative
functions, or of public servants. The Government referred
laconically to the existence of two associations for public servants
in the public sector and referred to other associations without
mentioning them by name. Furthermore, the report did not contain
information on the provisions guaranteeing the right to organize
of managerial staff in the private sector. The Workers' members
emphasized that this category of worker should be
guaranteed the right to establish and join organizations of their
own choosing, including the trade unions that covered other categories
of workers. The concept of managerial functions needed
to be defined precisely so as not to weaken the trade unions of
other workers.
With regard to interference by the public authorities in the establishment
and functioning of trade unions, they noted that the
problems raised were of a serious nature and related to restrictions
on the categories of persons who could hold trade union office, interference
by the public authorities in the internal affairs of trade
unions and excessive limitations on the establishment and operation
of trade unions at the enterprise level.
With regard to external control, they regretted that the information
provided to the Committee of Experts was insufficient to establish
whether such control was limited to supervising the rules of
trade unions and the application of the law, or whether such matters
were subject to really impartial judicial control,
OiLthejubject of the requirement for the membership of a trade
union to include 30 percent olthc woikci...;. ^r. cnlj:-;;;^; . ,:r ::
could be registered, they warned that this threshold raised serious
problems in systems fui the rcaignü:;--- . - : :-.:-,;-- .•--•-•b;
tions which were based in part or in whole on enterprise unions,
with the risk that workers in small- and medium-sized enterprises
would be excluded. They therefore emnhasizca the- ntreu h. c-ia-jlish
without delay procedures and provisions which promoted freedom
of association, as set out in the Preamble to the ILO Constitution
and in the Convention.
On the question of EPZs, they noted that the Government referred
to the recommendations of the National Labour Law Commission
(NLLC) and to a Bill and the fact that, anticipating certain
amenaments LO the legislation, some workers appeared to be authorized
to establish trade unions. Workers in EPZs and their organizations
needed guarantees set out in specific legal provisions
for the effective exercise of freedom of association. The protection
of the rights of these workers was a major concern of national and
international trade union movements and of the ILO, which had
established a specific programme on this subject.
Furthermore, with regard to the right to strike, the procedures
and provisions governing the exercise of the right to strike were
such that, in practice, the very principle of the right to strike was
jeopardized. They recalled the conclusions of the Conference Committee
in 1995, which urged the Government to ensure that the procedures
and provisions concerning strikes did not amount to a denial
of this fundamental right, and they deplored the fact that the
Government's response was confined to stating that it had noted the
observations of the Committee of Experts. The powers of the Government
to prohibit the right to strike, if it considered it contrary to
the national interest, constituted a violation of the principles of
freedom of association and were inadmissible in a democratic society.
The national legislation reflected the gap between civil society
and the public authorities. However, better collaboration between
them could promote social peace and the emergence of a more stable
industrial relations system.
In conclusion, the Workers' members called for the amendment
as soon as possible of the Labour Code and other relevant laws to
take into account all of the observations of the Committee of Experts
and the recommendations of the national social partners.
They urged the Government to provide detailed information to the
Committee of Experts on all developments, and particularly on the
work of the NLLC and any progress achieved in law and in practice.
Finally, the Government should make as much use as possible of
ILO technical assistance.
The Employers' members recalled that the application of Convention
No. 87 by Bangladesh had been examined on three occasions
during the 1990s by the Committee of Experts, and had been
discussed by the Conference Committee in 1995. There were a
number of important issues involved, which required individual examination.
With regard to the right of association of persons carrying out
managerial and administrative functions in the public and private
sectors, the important point was the manner in which these categories
of persons were delimited. No specific information had been
provided on this point by the Government representative. However,
the Government's response to the comments of the Committee
of Experts had made reference to two associations and the Committee
of Experts in its comments had requested the Government to
provide specific information on the number and siz- of any other
such associations. The issue which arose in both the private and the
public sector was that the persons in question might in practice be
the representatives of employers. They could not therefore be
members of unions at the same time, as they would then have to
negotiate with themselves. The Government representative had
stated that the category of persons concerned covered two per cent
of all the workers involved, which appeared to be a reasonable
number. Although those who were really managerial personnel
could be excluded from the right to establish and join workers' unions,
any who did not come into this category should be treated as
19/75
normal workers. The Government should therefore be requested to
provide further information on this point in an additional report.
With regard to the right of public servants to organize, the Employers'
members noted that the draft Labour Code would appear
to continue to deny this right to public servants and to restrict their
right to issue publications. The Government representative had not
provided very much information in this respect on whether it intended
to change the proposed provisions.
On the subject of restrictions on the range of persons who could
hold trade union office, the Emplovers' member's nnted that,
among others, workers who were dismissed for misconduct could
not hold such office. The Government representative had stated
that this measure was designed to protect the activities of the trade
unions. However, the Committee of Experts had pointed out that
such legislation entailed a risk of interference by employers. The
Committee of Experts had rightly requested the amendment of the
relevant provisions to provide for greater flexibility in relation to
the membership of trade unions and the holding of trade union office.
What was required was a legal examination of the cases which
had occurred in this respect, but the Committee of Experts had not
requested more complete information on this point.
On the question of external supervision of the activities of trade
unions, the Employers' members noted that the Registrar of Trade
Unions enjoyed excessively broad powers, which included the right
to examine many kinds of documents at any time, and not just on a
periodical basis. In such cases there should be proper independent
procedures to prevent any undue interference in the activities of
trade unions. The Government representative had stated that such
machinery existed. The Government should therefore be requested
to provide additional information on the applicable provisions
which determined and restricted the powers of the Registrar and
provided for independent supervision of his activities.
With regard to the 30 per cent requirement, under which no
trade union could be registered unless it had a minimum membership
of 30 per cent of the total number of workers employed in the
establishment or group of establishments concerned, the Employers'
members noted that the status of trade unions could be withdrawn
when membership fell below that level. This was an exaggerated
restriction by the State which placed too great a restriction on
freedom of association and prevented the creation of new trade union
organizations. It was important to remember that most workers'
organizations had started out with few members. Although the
Convention did not contain specific provisions in this respect and it
was for the State to set the necessary conditions, these conditions
should not constitute obstacles to the development of new trade
unions.
Turning to the question of export processing zones (EPZs),
which existed in many countries, the Committee of Experts had reported
that the NLLC had submitted a report on this subject which
was being studied by the Government. This report, and a Bill on
that matter, would be submitted to Parliament. Although the Government
representative had not provided further details on the
NLLC's report, he had claimed that workers in EPZs enjoyed better
conditions of work than the rest of the country's workforce and
were not unhappy with their situation. Although the Convention
did not state that the same labour law had to apply throughout a
country, or particularly in EPZs, it did require the observance of the
principles of freedom of association on a nationwide basis.
Turning to the comments of the Committee of Experts on restrictions
on the right to strike in Bangladesh, the Employers'
members referred to their own position on this question and noted
that there was no basis in the Convention for measuring the extent
of any restrictions that were imposed on this right. The provisions
of the Convention would be infringed where the right to strike was
constrained to such an extent that it no longer existed. The Employers'
members recalled that strikes could have serious repercussions
on the national economy, particularly in view of the growing
interdependence of the productive and service sectors. It was
therefore relatively frequent for governments to establish a certain
threshold for the proportion of the workers who needed to give prior
approval to the calling of a strike in order to prevent disruption
of the productive process. In this case, the level was set at three
quarters of the workers concerned, which seemed reasonable. The
Committee of Experts had also referred to the possibility of prohibiting
a strike if it were considered prejudicial to the national interest
or where it involved a public utility service. The Employers'
members recognized that these expressions were not clear. However,
the comments of the Committee of Experts were based on its
narrow interpretation of the essential services. The Government
should be requested to provide further information on the application
of the relevant legal provisions in practice and the cases, and
circumstances, in which these provisions had been invoked. However,
this had not been done in the report of the Committee of Experts.
The Employers' members recalled in this respect that it was
the fundamental right of every State to determine the extent to
which certain limits should be applied to the right to strike for the
public good.
In view of the complexity and large number of issues involved, it
was not possible to arrive at conclusions, in this case, easily. Further
information should therefore be requested in the form of a written
report that covered all of the questions raised in detail. The Government
should also specify the areas in which change was seriously
being contemplated so that these points could be taken up in future
and the changes adopted could be evaluated.
The Workcis" member oi Burkina Easo recalled that, for many
years, the Conference Committee and the Committee of Experts
had asked Bangladesh to modify its legislation and practice to conform
fully to the principles of freedom of association. She regretted
that, despite these appeals, numerous and grave violations of these
principles had again been committed, including acts of violence
against the members and leaders of trade unions. By way of example,
she stated that the Independent Union of Textile Workers of
Bangladesh and its members, the large majority of which were
women, had been the target of acts of aggression on the part of the
public authorities. In August 1995, the leaders of this union had
filed a complaint with the investigating official, but it had not been
received. Following the institution of judicial action in conjunction
with the Association of Exporters of Bangladesh, the Dhaka headquarters
of this union had been ransacked in November 1995 and
the members had been subjected to violence. Furthermore, the
members and leaders of a union of a textiles enterprise in Dhaka
had been the target of threats and harassments by the public authorities
throughout 1995 and 1996. In the month of June 1996, the
competent authority had refused, for the second time, to officially
register this union. The speaker noted with concern that, generally,
when workers registered complaints with the competent public authorities,
they were not listened to and did not get any cooperation
in finding an acceptable solution for the problems they faced. She
regretted that the Government's report did not provide any information
on the measures taken in this regard since the last report
examined by the Committee in 1995. Finally, concerning export
processing zones, she stressed the importance of these workers, the
great majority of which were women working in miserable conditions,
benefitting from the right to organize without restrictions or
discrimination of any kind. She highly doubted that the absence of
complaints by these workers effectively signified that they did not
have any complaints, as the Government had indicated. Finally, she
earnestly requested the Government of Bangladesh to modify without
delay its law and practice in order to bring them into full conformity
with the principles of freedom of association, and in particular
with the provisions of the Convention.
The Workers' member of the United States emphasized the serious
nature of the case, which concerned many of the most fundamental
provisions of the Cunvention, including the right of association
of public servants, the denial of the right to organize in EPZs,
restrictions on persons who could hold trade union office, interference
by public authorities in the affairs of trade unions and excessive
restrictions on the right to strike. He therefore regretted that
the Government representative had said very little that was new
since the Committee had last reviewed the case in 1995. With reference
to the statement by the Workers' member of Burkina Faso
concerning the continued violation of the Convention with regard
to workers in the garment industry, he recalled that there were over
800,000 workers in the industry, approximately 80 percent ofwhom
were women. Many garment factories were located in EPZs, where
trade unions were illegal. The Government representative had
made no apologies for this fact and indeed appeared to be informing
the Committee that the practice would continue. This matter
would need to be followed very closely.
The speaker added that during the past few years there had been
a courageous effort to organize independent unions in garment factories
and to bring those workplace unions into a single industrial
federation, the Bangladesh Independent Garment Union (BIGU),
which was independent of any political party, employers and the
Government. This attempt to organize an independent, democratic
industrial federation from the ground up would, if successful, be of
truly historic significance for Bangladeshi workers. However, up to
now the Government had refused to legally recognize BIGU, in
clear violation of the Convention. He noted that this effort to organize
the workers had coincided with the negotiation of an agreement
with the Bangladesh Garment Manufacturers and Exporters
Association (BGMEA) for the elimination of child labour in the
garment industry. The ILO had played a role in bringing about the
agreement and in its implementation. BIGU was an ardent supporter
of the agreement and had established the first schools for the
children rescued from the garment factories. However, there were
many forces in Bangladesh endeavouring to ensure that BIGU's
organizing effort would fail. Some of the many personal sacrifices
made by the workers in this respect were recorded in the ICFTU
1997 Annual Survey of Violations of Trade Union Rights. In particu-
19/76
lar, he pointed out that the garment industry was a major exporter
producing largely for well-known multinational companies based in
the United States and other countries. This case brought to light the
responsibilities, not only of the Bangladeshi Government and factory
operators, but also of multinational enterprises to ensure that the
fundamental human rights contained in ILO Conventions were respected.
Any denial of this responsibility would only strengthen the
growing forces that were opposed to the expansion of international
trade, economic integration and globalization. Full implementation
of the Convention by the Government, with the active support and
assistance of multinational enterprises, would play an important
role in resisting such protectionist forces and ensuring that these
processes benefitted as many people as possible in Bangladesh and
elsewhere, and not just the most privileged. Unfortunately, much
still needed tn hp done in this respect.jisjihown by this case.
The Workers' member of India agreed thaTtlie^âseTaîsêaTirat^
ter1; nf serious concern. As a neighbour of Bangladesh, he received
constant reports that trade union rights were not respected in that
country. Although the Government representative had stated that
trade unions cnuld go to court to protect their rights, this was not
always possible in practice. He referred to a case ot the dismissal of
workers in 1996, in which the workers concerned had endeavoured
to take action through the courts. However, the trade union representatives
who had assisted them had been told to leave their jobs,
been beaten up and offered different jobs on condition that they did
not go to court. It was therefore not true to say that workers and
their representatives could obtain protection for their rights
through the courts in Bangladesh.
Recalling the statement of the Government representative concerning
the right of association of public servants, he warned that
this statement raised the issue of the difference between trade unions
and associations. The latter did not have the same rights as
trade unions and it could not therefore be claimed that public servants
in Bangladesh enjoyed the right to freedom of association. On
the issue of the 30 per cent minimum requirement for membership
of a trade union before it could be registered, he pointed out that
this level was set much lower in most other countries. Although the
Government representative claimed that the reason for the measure
was to prevent a multiplicity of unions, its real objective was to
raise obstacles to the establishment ot trade unions in general.
Moreover, the situation in EPZs in Bangladesh was also very serious.
The message disseminated to multinational enterprises by the
national authority responsible for promoting these zones emphasized
the fact that the law prohibited the formation of trade unions.
This was proof enough that the Government did not respect the
right to freedom of association or collective bargaining in EPZs.
Another anti-trade union measure that was not accepted by the
trade unions of other countries was the broad powers of the Registrar
to interfere with their activities through inspections of trade
union offices, documents and staff.
On the question of the range of persons who could hold office in
trade unions, he noted that workers could be dismissed for unfair
labour practices, without such practices being specified in detail in
the legislation. This gave the Government broad powers, for example,
to dismiss trade union leaders when it so wished. Other serious
constraints on freedom of association were the requirement that
75 per cent of the workers concerned needed to give their consent
to a strike and the possibility ot prohibiting strikes either which lasted
more than 30 days or which were considered prejudicial to the
national interest. These measures constituted serious constraints on
trade union rights and gave the Government wide powers to prohibit
strikes. For example, it had been possible for the Government
to prevent a strike by telephone workers by claiming that they
worked in an essential service.
Although the Prime Minister ot the country had come out in favour
ot the adoption ot changes in these matters, no concrete action
had yet been taken. It was necessary to amend the legal provisions
and for measures to be taken with the support of workers' organizations.
A request should therefore be made to the Government to
take the necessary measures to achieve progress in the application
of all aspects ot the Convention before the Conference Committee
met again next year.
The Workers' member of Greece considered that this was an
example among others where a ratification of a Convention was of
doubtful value as it was forgotten in practice. The content of the
Committee of Experts' observation highlighted a strange concern
for workers, who were mature adults who should be allowed freely
to organize themselves. The explanation according to which workers
could be tired for misconduct should be further clarified, as it
would be a cause tor concern it the right to determine what constituted
misconduct rested in the hands ot employers or of a governmental
institution and not in the hands of the judiciary. In any
event, the workers were not so stupid as to elect dishonest leaders.
This provision should therefore be repealed. As regards the requirement
ot a three-quarters consenting majority to declare a
strike, it constituted a blatant example of interference. The economic
situation was often invoked as a reason for not applying
standards, while experience showed that no country could prosper
without respecting them. If the Government really was intent on
applying the Convention, it should undertake to do so and this
Committee would then, next year, be able to take note ot any
progress made. The dialogue in this Committee should not only be
diplomatic in nature, but should give a voice to the workers not
present here and who were unable to make themselves heard in
their own country.
The Workers' member of Italy was of the opinion that, in spite of
the sparse responses provided by the Government, the seven points
raised by the Committee of Experts bore witness to a general and
persistent violation of freedom of association. The provisions affected
the right of the unions freely to choose their leaders and aliowid
for-tmjustific-d forms of intervention bv the authorities on
trade union premises. A complaint concerning viiiiaiiuii m m.^ü^r..
of asbociation submitted by a union of textile workers had resulted
in severe conclusions hy iiii. í.^üUHíU^C on FIL _ " ~ •:' W„ici:fniiii
in this respect. The 30 per cent requirement amounted, in practice,
to a bai to recruitment nf new trade union members. Furthermore,
the Industria! Relations Ordinance, 1969, permitted the firing of
trade union leaders. As regards the denial of the right to organize in
export processing zones, it should be recalled that, in 1992¡The Government
undertook to cease this practice. As for the restrictions on
the right to strike in essential services, they should be determined
through tripartite negotiations and not in an authoritarian way. The
elections held last year bore witness to the will of this country to
progress towards democracy. No such progress was possible, however,
in the absence of respect for fundamental rights. The first stages
of the joint programme between textile workers, UNICEF and
the ILO to abolish child labour were encouraging; perhaps a similar
type of programme could be of assistance to overcoming the obstacles
to freedom of association.
The Workers' member of Colombia expressed his concern regarding
the lack of information provided by the Government representative,
especially since hopes had been raised that the principles
of freedom of association would be fully respected. Concerns had
been raised regarding the interference of the Government in the
internal affairs of trade unions, particularly in the case of workers
dismissed on grounds of misconduct who were then prevented from
holding office in trade unions. In certain countries being a trade
union member in itself can lead to unjust dismissal. Freedom of association
and the right to strike had to be guaranteed in export
processing zones, as well as in the public sector. These rights had to
be respected throughout the world, and especially in developing
countries. Despite the observations formulated by the Committee
of Experts, there had been little progress and repression continued.
He could only hope that next year would bring about genuine
progress concerning the respect of workers' rights.
The Workers' member of Pakistan, pointing out that a new
Government which had come into power last year had committed
itself to respecting freedom of association, called upon the
Government representatives to adhere to Convention No. 87. It
was not only the ratification of a Convention but its implementation
in letter and spirit that mattered. First of all, trade union
rights in export processing zones as well as in rural areas needed
to be respected. Secondly, the restrictions on trade unions to
elect their office-bearers needed to be abolished, since freedom
ot association dictated that trade unions elect their representatives
in full freedom without interference from the Government.
As a result, section 7-A(l)(b) of the Industrial Relations Ordinance,
1969 (IRQ), needed to be repealed. Finally, the requirement
under the IRO that no trade union may be registered
unless it had a minimum membership ot 30 per cent of the workforce
meant that it would be difficult to organize workers in a
large establishment, and therefore needed to be removed. He
hoped that the Government would take up the offer of technical
assistance ot the Office.
The Employers' member of India indicated that labour laws in
Bangladesh and India were similar. Thus, while the Trade Union
Act in India merely required a membership of seven workers to
form a union, persons carrying out managerial and supervisory
functions preferred to form associations, and be registered under
the Societies Act, in view ot the nature of their functions. Therefore,
in Bangladesh, the restrictions placed on them under the IRO
were justified. Similarly, the restrictions on the range of persons
who could hold trade union office were justified so that the internal
trade union leadership could grow. The 30 per cent requirement
under the IRO had to be maintained so as to avoid the proliferation
of trade unions which were neither in the interest of the industry,
nor the workers. Finally, the right to strike was not an absolute right
and should be subject to the interests of the State. The type ot overprotective
pro-worker regulation promoted in discussions here was
eroding employers' rights to manage their enterprises; he hoped
19/77
that this Committee would have a balanced view and keep in mind
the entire industrial relations scenario.
The Employers' members recalled that the seven points which
were taken up by the Committee of Experts did not all have the
same importance and that new information was required and that
the necessary changes should be carried out.
The Committee noted the statement of the Government representative
and the debate which had ensued. It observed that, for
many years, important and numerous discrepancies, in panicular in
the export processing zones. existed hetween, on the one hand, the
national legislation and practice and, on the other hand, the provisions
of the Convention. The Committee expressed the hope that
the National Labour Legislation Commission would rapidly conclude
its work on revising the labour legislation and that the new
Labour Code would take into account the numerous and repeated
observations of the Committee of Experts and also those of the
Conference Committee. It reminded the Government of the possibility
of requesting technical assistance from the Office in this regard.
19/78
Document No. 257
ILC, 85th Session, 1997, Report of the Committee on the
Application of Standards, pp. 19/83-19/87 (Costa Rica)
International Labour Conference ^ Q
Provisional Record
Eighty-fifth Session, Geneva, 1997
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Page
PART ONE: General Report 2
A. Introduction 2
B. General questions relating to international labour standards 4
C. Reports requested under article 19 of the ILO Constitution 36
D. Compliance with specific obligations 50
PART TWO: Observations and Information concerning Particular Countries 59
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 59
A. General Observations and Information concerning Certain Countries 59
B. Observations and Information on the Application of Conventions 62
C. Table of Detailed Reports on Ratified Conventions 129
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 131
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 132
A. General Observations and Information concerning Certain Territories 132
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 133
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 134
IV. Reports on unratified Conventions and Recommendations (article 19 of the Contitution) - General
Survey on Labour Administration in respect of Convention No. 150 and Recommendation No. 158 135
Reports received by 17 June 1997 relating to Convention No. 150 and Recommandation No. 158 . 135
Index by Countries to Observations and Information Contained in the Report 137
19/1
Costa Rica (ratification: 1960). The Government representative,
the Minister of Labour and Social Security, emphasized that his
country fully applied the rule of law and allowed the law courts to
decide on any discrepancies which might emerge in its society. The
right to strike in Costa Rica had been set out in 1949 in article 61 of
the Political Constitution. The provisions of this article showed
clearly that the legislator envisaged that the right to strike would be
set out in law, in this case in the Labour Code, and that it would
have two limitations: in the first place, as to the sectors in which it
could be exercised. with the indication that it was prohibited in the
public services. the definition of which would be determined by law;
and, in the second place, as regards the manner in which it was exercised,
with the prohibition of any acts of coercion or violence. Section
364 of the Labour Code provided that a strike was the temporary
stoppage of work in an enterprise, establishment or business,
agreed upon and executed peacefully by a group of three or more
workers, with the exclusive purpose of improving or defending their
mutual economic and social interests. This provision was supplemented
by section 366 of the Labour Code (first part), which set out
the requirements to be met in order to call a legal strike. These ineluded
strict compliance with section 364, exhaustion of the conciliation
procedure set out in Chapter III, Tttle VII, Sections 500 and
following, of the Labour Code, and the requirement of being at
least 60 per cent of the workers in the enterprise, workplace or business
concerned. It could therefore be concluded that any strike
which did not meet the requirements of section 366 (first part) was
illegal. The strike by workers in Lineas Aeras Costaricenses SA
(LACSA), which was referred to in the report of the Committee of
Experts, did not fulfil the above requirements and was therefore
illegal. This was not because it had taken place in a public service,
but because when calling the strike the workers had not fulfilled the
requirements established by law.
With regard to the right to strike in the public sector in general,
article 61 of the Constitution excluded workers employed in the
public service from its protection and left the determination of pubiIC
servi-ces10 the dicrditm-,>fiht, islat-0£,-'.l::l:ic constit11ti'11lal orov1sion
was renected in section 368 (first part) of the Labour Code,
whid1 stated that strikes were not permitted in the public services.
In this respect. it was important to note that ;ediou 368(2), "hi-..h
provided that disputes occurring in these services betwe-{!n employ""
and workers. and in any other cases in which strikes are prohihited,
shall be submitted for settlement by the labour courts, had
been found unC6llStitutional by the Constitutional Council _on
23 August 1992. Sections 467 to 535 of the Labour Code had also
been declared unconstitutional with regard to public servants and
to public administrations not subject to a private employment regime,
as well as sections 398 to 404 and section 535, without prejudice
to the rights acquired in good faith through the labour courts
for the specified duration of such rights. The ruling by the Constitutional
Court stated that there were two different types of employment
relations in the public service. One of these was the relationship
of employees in the public sector who were bound to public
administrations by a "public employment regime", under the terms
of the state regime set out in articles 190 and 191 of the Political
Constitution. The other type of employment relationship was not
legally subject to a public employment regime, principally in state
enterprises in which the State owned all or most of the shares, with
the result that the employees concerned were not governed by the
concept of a public employment relationship, but rather a private
employment relationship. In one of the grounds for its judgment,
the Constitutional Court made reference to these administrations
by asserting that the declaration contained in this decision covered
the employment relationship between the public administration ( or
administrations) and its employees but as concerned sectors in
which there existed a national regulation referring to the private
sector, the solution should be different. These cases would be submitted
to arbitration procedures if they were based on laws, regulations
or governmental decisions in force. In addition, they could not
be the object of arbitration decisions taken in good faith nor decisions
made by tribunals composed of persons who were not sworn
officials. He recalled in this respect that, by conviction and legal
obligation, the Government respected the rulings of the courts and
the Constitutional Council, which were universally binding.
The definition of the public service according to Costa Rican law
was contained in section 369 of the Labour Code, which stated that,
for the purposes of the above section, public service means: (a) all
services provided by state workers or institutions, where their activities
arc not also provided by individual profit-making enterprises;
(b) services provided by workers engaged in sowing, cultivating and
harvesting agricultural products, raising stock and producing forestry
products, as well as their processing when such products would
deteriorate if such processing were not carried out immediately.
Nevertheless, the above services excluded the services provided by
agricultural workers in enterprises which have concluded contracts
with the State, which have been converted into laws of the Republic,
in which it has been specified that the enterprises and their
workers may submit disputes to arbitration for settlement only
when they have voluntarily agreed to do so; (c) the services provided
by employees of railway, sea and air transport enterprises. and
the services provided by transport employees in any specific transport
enterprise until its closure; ( d) services provided by employees
which were absolutely indispensable to maintain the operation of
specific enterprises which could not interrupt their services without
causing serious and immediate harm to health or the public economy,
such as clinics and hospitals, hygiene services and lighting; and
( e) services declared to be such by the Executive Authority
throughout the territory of the Republic or in part of its territory,
where the Legislative Assembly has availed itself of its constitutional
powers to suspend certain individual guarantees.
The Government representative informed the Committee that,
since the adoption of the Labour Code, various attempts had been
made to make changes relating to the concept of public service.
One of the measures adopted was contained in the Public Employment
Bill No. 11,888 which was currently before the Legislative
Assembly. The above Bill, in Tttle VI (single chapter, sections 110
19/83
to 119), contained regulations governing strikes in public services
which recognized the right to strike in non-essential services and
placed limits upon it, as well as establishing sanctions for non-compliance,
and general prohibitions and the manner in which it could
be exercised. With regard to the right to strike in transport enterprises,
with reference to the Committee of Experts' comment on
the dispute in the LACSA company, he indicated that section 113(f)
of the Bill stated that: (general conditions of legality) in order for a
strike in the public administration to be legal, employees and their
organizations must meet the following requirements: (•••}(() in the
case of vessels, aircraft, trains, buses and other public means of
transport, such vehicles must be taken to their point of departure
before the commencement of the strike.
The above information showed the openness of the legal system
to permitting workers in transport enterprises, such as LACSA, to
take part in strikes, provided that they complied with certain conditions
in order to be classified as "legal strikes". In this way, the Government
of Costa Rica was demonstrating its will to comply with
the recommendations of the Committee of Experts concerning
strikes in the sectors in question. There could be no doubt that
through the new legislation, which was awaiting adoption by the
Legislative Assembly, the Government of Costa Rica guaranteed
minimum services and recognized the right to strike in non-essential
services in public institutions, thereby endeavouring to find a
new balance between the rights of society and the users of public
services, on the one hand, and of public employees, on the other.
The rights which were formally set out in Costa Rican legislation
and in the proposed legislation formulated by the Government,
which was now before Parliament, were also becoming broader in
practice. A little more than one year ago, teachers in the country,
whose trade union organization was the strongest and best organized,
had held a general strike to show their disagreement with the
reforms to their special pension scheme introduced by the Government.
The strike had lasted six weeks and finished when an ending
to the strike was negotiated with the Magistrate. Despite being an
illegal strike because it had taken place in a public service and did
not meet the requirements set out by law, none of the strikers had
been subject to dismissal or reprisals. A few days previously, a strike
by telecommunications workers had been ended by decision of the
workers themselves, but not due to government pressure. Even
though the strike had been illegal, no sanctions had been taken
against the strikers. The same had occurred in a strike called a few
months previously in a hospital where the workers were calling for
an increase in their food subsidy. The strike had been ended by decision
of the workers and no sanctions had been taken against those
who were involved in this illegal action. The Government representative
emphasized that these cases demonstrated once again
that, irrespective of whether or not strikes were legal, and unless
they involved the violent expression of a point of view, they were
respected even where they were in contravention of the law of the
country. Strikes were neither prevented nor terminated by force.
Nor were reprisals taken against the strikers.
With regard to the recommendation by the Committee of Experts
that foreigners should be able to hold trade union office, at
least after a reasonable period of residence in the country, the Government
representative explained that the prohibition was a result
of a principle set forth in the Political Constitution. Article 60(2)
provided that foreigners were prohibited from holding office or exercising
authority in trade unions. The legal basis of the above provision
had its roots in the question of national sovereignty. In accordance
with the country's constitutional provisions, sovereignty
was vested exclusively in the nation. The Constitution reserved to
nationals of the country the exercise of political rights on the basis
that these were intrinsically derived from the exercise of the people's
sovereignty. Indeed, since sovereignty was vested in the people,
in accordance with articles 2, 3 and 4 of the Political Constitution,
it was evident that the various ways in which the will of the
people could be expressed, including the holding of office and the
exercise of authority in trade unions, was confined to those who
were members of the people. Nevertheless, the Government of
Costa Rica was always ready to bring its legal provisions into conformity
with the principles of the ILO and had decided to request
technical assistance from the ILO in order to find a legal solution
that was in accordance with the recommendation of the Committee
of Experts.
On the question of strikes in the agricultural, stock-raising and
forestry sectors, he noted that the concept of agricultural activity as
a public service was not set out in jurisprudence or in very many
legal texts. It was therefore interesting to examine the basis upon
which the legislator had developed this concept. The explanation
was to be found in the statement transmitted to Congress by the
President of the Republic when submitting the draft Labour Code.
He had stated that he was aware that the ILO had adopted a Convention
in Geneva on 12 November 1921 obliging its signatories to
guarantee to all persons working in agriculture the same rights of
association as urban workers and to repeal any legislative or other
measures which restricted those rights as they related to agricultural
workers. However, he had emphasized his intimate conviction
that agriculture and its related activities, in a country such as theirs,
which depended exclusively on the produce of its fields, constituted
a real public service which, for reasons of common interest, could
not and should not be paralysed by a strike or work stoppage. Nevertheless,
it was probable that the underlying reasons for the provision
in question were more of a political nature indeed, the prohi
bition upon strikes by agricultural workers was not an isolated
provision, but formed part of a legislative policy that resulted in the
Labour Code containing a whole series of provisions containing exceptions
for rural workers. Despite the fact that they were dispersed
throughout the Labour Code, they amounted to specific legal
treatment that was less favourable for these workers. A number
of these provisions had been repealed or amended, but there was no
doubt that the intention was for the Labour Code not to apply in
real terms to the agricultural sector.
It could therefore be deduced that the provisions in question
covered two types of situations and one exception. The first was the
most general and included all the work of sowing, cultivating and
harvesting agricultural products, raising stock and producing forestry
goods. The second case consisted of the processing of such products,
and only covered cases in which they needed to be processed
immediately in order to prevent them from perishing. The exception
concerned agricultural workers in enterprises that had concluded
so-called "legislative contracts" with the State in which they
agreed to have recourse to voluntary arbitration. Subsequently, in
view of the fact that in the cases under examination strikes were not
permitted and arbitration was compulsory, and in view of the consideration
that a legislative contract could not be modified by a law,
the legislator had to enshrine this provision in the law for the sake
of coherence. The Government was aware of the less favourable
treatment accorded to freedom of association for agricultural workers,
particularly with regard to the right to strike, since the adoption
of the Labour Code and on various occasions had endeavoured to
introduce reforms relating to the concept of public service. One of
the measures adopted was contained in the Public Employment Bill
No. 11,888 which was currently before the Legislative Assembly.
The above Bill, in Title VI (single chapter, sections 110 to 119), contained
regulations governing strikes in public services which recognized
the right to strike in non-essential services and placed limits
upon it, as well as establishing sanctions for non-compliance and
general prohibitions. In accordance with the proposed provisions of
section 110 of the above Bill, strikes would be permitted in the agricultural,
stock-raising and forestry sectors. The Government representative
was of the opinion that the prohibition of the right to
strike for these workers was discriminatory and violated the principle
of legal equality. He therefore undertook to request the technical
assistance of the ILO with a view to formulating draft legislation
to eliminate this restriction. The above information once again
demonstrated the commitment of the Government to complying
with the recommendations of the Committee.
The Workers' members recalled that the Committee had examined
in detail the application of the Convention by Costa Rica in
1993. One of the major concerns of the Committee, apart from the
right to strike and several violations of the principles of freedom of
association, had concerned the solidarist movement. They noted
that the Government had taken into account the observations and
comments of the Committee of Experts, as well as of this Committee,
in the establishment of the relevant draft legislation. However,
they regretted that serious problems remained in practice. According
to some information, a growing number of employers were using
these non-representative associations to free themselves from
the obligations contained in the collective agreement. They insisted
that the draft legislation, which had been formulated more than two
years ago with the technical assistance of the ILO concerning a pension
fund for workers and the democratization of the economy, be
adopted without any delay in order to ensure that all trade unions
could enjoy the right to manage the unemployment compensation
fund.
As regards the prohibition on foreigners from holding office or
exercising authority in trade unions contained in section 60 (2) of
the Constitution, the Workers' members reiterated the position that
they had adopted in 1993 and once again requested the Government
to re-examine the question so that workers could freely elect
their representatives, in full conformity with the provisions of the
Convention.
As regards the limitations on the right to strike, they recalled the
conclusions adopted by the Committee of Experts in paragraphs
158 and 159 of the 1994 General Survey on Freedom of Association
and Collective Bargaining, in which it was stated that the right to
strike should not be subject to any restrictions or prohibitions in the
public sector, with the exception of civil servants exercising authority
in the name of the State or in essential services, in the strict sense
19/84
of the term, namely services that could endanger the life, safety or
health of the population if they were disrupted. As the Committee
had stated, they considered that transport services in general were
not essential services in the strict sense of the term. They stressed
that the Government should take all necessary measures to eliminate
all limitations on the right to strike in the public sector, as well
as in the agricultural, stock-raising and forestry sectors. They hoped
that the Government would in the near future adopt draft legislation
on public services which contained limitations on the right to
strike in accordance with the observations formulated by the Committee
of Experts and this Committee.
Finally, while they noted that several draft legislations covering
a number of issues raised by this Committee in 1993 had been prepared
with the technical assistance of the ILO, they were very concerned
about the delays encountered, as well as the contradictory
practices, which miilrlhmdeiLJh& effective implementation of thg
Convention. They emphasized the fact that the Government should
take the necessary measures in order to solve the problems raised
by the Committee of Experts. In this context, it was essential that
the new information provided by the Government's representative
be transmitted to the Committee of Experts for complete analysis.
The Conference Committee should consider re-examining this case
at its next session.
The Employers' members thanked the Minister of Labour of
Costa Rica for his extensive and clear comments. When the case
had been considered by the Conference Committee in 1993, it had
had to deal with a larger number of individual points raised by the
Committee of Experts. The fact that this list had shortened gave
grounds for believing that there was less to be criticúcd. Indeed, in
1994, the Committee of Experts had placed Costa Rica on the list of
cases of progress in relation to the Convention.
With regard to the prohibition upon foreigners from holding office
or exercising authority in trade unions, the Employers' members
acknowledged that this constituted a restriction of the freedom
of workers and trade unions to organize their own activities. Although
the Minister had described the historical reasons for the
measure, he had also indicated a readiness to adopt reforms and to
request technical assistance from the ILO. It could therefore be assumed
that changes would be made in this respect.
Concerning the prohibition upon exercising the right to strike in
the public sector and in the agricultural, stock-raising and forestry
sectors, the Minister had also provided extensive explanations. The
Employers' members noted in this respect that certain changes had
been introduced in practice and had been examined by the Constitutional
Court to determine their conformity with relevant provisions
of the Constitution. However, the country did not have uniform
regulations applying to all cases of strikes and lockouts. On
the question of whether the transport sector was an essential service,
the Employers' members emphasized the differences between
the various member States, with their varying structures, levels of
development and types of economy. The situation could not therefore
be judged in a uniform manner. With regard to the question of
strikes in the public sector, they noted that the employer in such
cases was the State, which normally appeared to be the stronger
party. However, in many cases the State was in practice the weaker
party. The category most affected by strikes in the public sector was
the population as a whole, which could be held hostage by public
sector workers. It was for individual States to draw up the necessary
limitations in order to achieve a good balance as regards strikes.
Since the Convention and other related international instruments
set out only general principles, without any detailed provisions, the
principles in question had to be applied by each State according to
its national situation. The Employers' members were encouraged
by the readiness expressed by the Minister to adopt changes and
adjust to the criticisms of the Committee of Experts. Further improvements
could therefore be expected. Much of what had been
criticized in this case could be explained by the historical background
of Costa Rica, with the State holding particularly widespread
monopolies in many areas. This had been changed gradually,
but in some areas the labour legislation had not been fully
adapted. It would appear that Costa Rica was set on the right path
and realized that the internal discrepancies in its regulations relating
to freedom of association needed to be resolved. In this respect,
the Employers' members noted that it was the practice of the Conference
Committee to re-examine the cases on which it reached its
own conclusions. This had the effect that many cases came up before
the Committee year after year. However, the Employers'
members believed that cases such as the present one would not require
re-examination at the next session of the Conference Committee
and that further action should depend on the comments of
the Committee of Experts in its next regular report on the case.
The Workers' member of Costa Rica supported the statements
of the Workers' members. In Costa Rica, strikes were forbidden in
the public sector and collective bargaining did not exist. In the last
50 years, only twice had strikes been declared legal in sectors in
which strikes were permitted by the legislation. Even where a strike
was legal, such as in the case of LACSA, situations were reached in
which workers were dismissed, collective agreements abrogated
and legal proceedings were still pending five years after the event.
The Government had not followed the recommendations of the direct
contacts mission or of this Committee, which had requested it
to let trade unions manage their pension funds themselves (forbidden
by Act No. 7360). The few concessions which had been granted
to the trade unions were the result of the action of the AFL-CIO,
which had requested the United States authorities not to grant
trade benefits to Costa Rica. Finally, he referred to Report No. 305
of the Committee on Freedom of Association concerning the case
of FERTICA SA Workers' Association, which involved anti-trade
union dismissals of hundreds of workers. The Committee on Freedom
of Association had expressed its concern at the delays and lack
of effectiveness of procedures in a considerable number of cases.
These deplorable delays In r,o many cases hsá To be reduced. He
wondered whether the future would bring about the disappearance
of the trade union movemen! in view of the fact that neither direct
contacts missions nor ILO technical assistance had succeeded m
changing the attitude of the national authorities.
The Workers' member of Argentina recalled that the Government
of Costa Rica had undertaken to bring its legislation into conformity
with the provisions of the Convention. The-Labour Code
prohibited the exercise of the right to strike in the public sector, as
well as in the agricultural, stock-raising and forestry sectors. The
Government had indicated the existence of draft legislation to
modify the current legislation. However, it was regrettable that the
statements of the Government showed its intention to maintain
these legal restrictions. Strikes were the most legitimate weapon
available to workers. It was for this reason that the concept of "essential
services" needed to be structured and limitative. The ending
of discrimination against public sector workers had been difficult
for the ILO to achieve in view of the reluctance of governments to
accept freedom of association and collective bargaining. Conventions
Nos. 151 and 154 clearly illustrated the workers' struggle to
obtain equal treatment in the field of fundamental rights. These
Conventions, with few exceptions, were applicable to all workers in
the public sector. It was for this reason that the Government of Costa
Rica needed to abrogate all provisions which restricted the right
to strike, and which limited the full application of the principles of
freedom of association and collective bargaining. Nevertheless, the
existence of legislation was not sufficient: practical agreements
were needed for the effective exercise of trade union rights. The
Government should provide information on the issues raised and
demonstrate as soon as possible that the rights contained in the
Convention were guaranteed in the country. He noted that the
statement of the Employers' members on the right to strike in general
was out of place. The value and legitimacy of the right to strike
as a means of defending and promoting workers' rights could no
longer be questioned. In certain situations, strikes were the only
means available to workers to defend their rights. Experience from
the world over showed that workers knew when and how to use this
right. Of course, there had been periods when this right had been
repressed, but it was useless today to try to restrict it, despite the
current trend towards globalization. He stressed the fact that the
workers of the European Union and of MERCOSUR had clearly
shown over the past few years that the exercise of the right to strike
was the only way for them to make their voice heard.
The Workers' member of the United States reminded delegates
that those who did not learn from history were doomed to repeat it.
In the case of Costa Rica, it was the Government which had not
learned from history, but the Costa Rican labour movement and the
workers that it represented who had been doomed to the repetition.
Costa Rica had been no stranger to the Committee on Freedom of
Association, with over 40 complaints filed against it since 1967.
Ironically, Costa Rican labour law had undergone certain reforms,
although much of the long-standing law had been interpreted and
enforced in an even broader manner, rendering the violations of the
Convention even more chronic. With regard to the prohibition
upon the right to strike in the public sector, the Committee of Experts
made particular reference to the air transport sector and had
called for the prohibition to be limited to public servants exercising
authority in the name of the State or in essential services in the strict
sense of the term. The Committee of Experts had hoped that the
Costa Rican Government would take steps to eliminate the broad
prohibition placed on the trade union leadership role of foreigners
and the prohibition of strikes in the public sector, and in the agricultural,
stock-raising and forestry sectors. However, the matters covered
by the Committee of Experts only constituted a fraction of the
problems related to freedom of association in the country. It remained
virtually impossible to create a trade union in the private
sector, including the nine export processing zones in the country,
because trade union activitists were constantly dismissed and blacklisted
without any effective protection. As a result, collective bar-
19/85
gaining was becoming almost non-existent in the private sector. The
prohibition of the right to strike in the public sector only therefore
formed one part of a much broader problem. In practice, strikes
were banned in about 65 per cent of the manufacturing and service
sectors which were designated as being of public interest. In addition
to the sectors mentioned by the Committee of Experts, the ban
on strikes effectively included insurance, banking, oil and related
industries, electricity, water, communications, cement, education
and health care. Not surprisingly, only two strikes had been declared
legal in the country over the last 50 years. It was nu seciel
that the Costa Rican Government had actively opposed any linkage
and conditionality as regards labour rights in the trade integration
process. The question therefore arose as to whether Costa Rica
would respect the ILO and its supervision process. He hoped that
the Government could learn from history and begin to take seriously
the conclusions contained in the report of the Committee of Experts,
despite the fact that these conclusions did not address the entire
crisis as regards freedom of association in the country. He
therefore implored the Government to stop the victimization of
Costa Rican workers and to ensure that a sad history did not repeat
itself.
The Workers' member of Colombia noted that the Committee
was confronted with a very clear case of the violation of the Convention
by the Government. He recalled that it was a common feature
in Latin America to prohibit non-national workers from holding
office or exercising authority in trade unions, as well as to
prohibit strikes in the public sector. He noted that the trade union
movement had always criticized policies which seriously infringed
freedom of association. In the present case, however, the violation
of the Convention was more serious, since strikes were also prohibited
in the agricultural, stock-raising and forestry sectors, and in air
transport. Workers could not remain passive with regard to such
provisions, which seriously violated trade union rights. He recalled
that strikes were never an end in themselves, but rather the ultimate
means available to workers when confronted with the intransigence
of governments or employers. Finally, he emphasized that
the Committee on Freedom of Association had, on numerous occasions,
reiterated that the right to strike was an inherent element of
freedom of association and that it had developed the concept of essential
services with a view to determining the cases in which the
right to strike could be restricted or prohibited. International Conventions
should be applied in good faith and national law should not
be invoked, as the Government of Costa Rica had done, to justify a
prohibition which covered all public services.
The Workers' member of Greece shared the opinion expressed
by some speakers that some legal progress had been made since
1993. However, these interventions, as well as the observations of
the Committee of Experts, also highlighted serious problems of application
of the provisions of the Convention. He was of the opinion
that this case should be evaluated in the next report of the Committee
of Experts in order to decide whether it should be re-examined
by the present Committee. As regards the restrictions on the right
to strike, he noted that the Government representative had stated
that this right applied to all workers employed in non-essential services.
He considered, however, that the right to strike should be universally
recognized and that, on the question of the services to be
maintained, the trade unions always displayed a sense of responsibility,
as they were fully aware of the importance of public support
for the success of any strike action. The services that were essential
should not be determined unilaterally by the Government, but
through negotiations with the trade unions concerned.
With regard to the prohibition upon foreigners from holding office
or exercising authority in trade unions, under article 60 (2) of
the Constitution, it was difficult to comprehend the attitude of governments,
including that of the Government of Costa Rica, many of
whose populations lived and worked abroad. He recalled that Europe
had experienced a significant level of migration in the aftermath
of the Second World War and that several immigrants now
held key positions in the trade unions of their countries of residence.
This involvement facilitated their integration and permitted
them to take part fully in the economic and social development of
their new country. He expressed the firm hope that the Government
would take all necessary measures to abolish the prohibition
upon foreigners from exercising authority in trade unions.
The Workers' member of Germany noted that some progress
could be discerned in this case. However, he still entertained great
doubts as to whether the situation in Costa Rica was in conformity
with international public law. Just as in the past, there continued to
be serious violations of the Convention, with a core group of workers
denied one of their fundamental rights. In particular, the concept
of essential services in the country was interpreted in a very
broad and arbitrary manner by the Government, resulting in a misleading
and abusive interpretation of the categories of workers covered
by this term. The facts of this case made it clear that it could
not be left to each individual State to set its own limits in this respect.
If the approach referred to by the Employers' members, under
which the concept of essential services would be interpreted differently
from country to country, were to be applied in practice, this
would amount to a denial of this core Convention. The Convention
should be interpreted in a uniform manner in accordance with the
usual jurisprudence. He therefore supported the interpretations of
the Committee of Experts, and their references to the work of the
Committee on Freedom of Association, which had been extremely
helpful in developing a definition of essential services. Care would
need to be taken in future to ensure that such services were interpreted
in a restrictive manner. He therefore appealed to the Government
to apply the spirit and letter of the Convention in its law
and practice. He recalled in this respect that the right to strike was a
universal right and should not be limited in the case of categories of
workers who were employed by the State.
The Government representative of Costa Rica distinguished between
the remarks made during the discussion by the Employers'
and Workers' members, and those made by individual Workers'
members. He thanked the Employers' members for the considered
manner in which they had discussed his intervention. They were the
true guarantee of how the work of the Organization should be handled
if it were to be successful. The strength of the Organization lay
in tolerance and respect for the points of view expressed by all parties.
He hoped that such respect would continue and would constantly
strengthen the ILO.
However, certain Workers' members of Costa Rica did not appear
to understand what was meant by the rule of law. He specified
that the rule of law guaranteed what was known in legal commentary
as due process, which meant the possibility for all the parties to
fully state their case before a decision was reached. If matters were
not resolved with the rapidity desired by many, this was due to the
fact that the various parties, but not the Government, raised preliminary
motions which delayed the proceedings. This so-called delay
was necessary for reasons of due process. If due process were not
observed, the parties would subsequently be able to complain that
their right of defence had been violated. Both workers and employers
benefited from the guarantees provided by due process that
their points of view, evidence and propositions would be taken into
account in all the solutions that were reached. In this respect, he
noted that, in accordance with the recommendation of the Committee
on Freedom of Association in Report No. 305, an expression of
his concern at the time taken to resolve matters before the labour
courts had been transmitted to the President of the Supreme Court.
The President of the Supreme Court had in turn transmitted that
concern to the labour courts, which would take the necessary measures.
However, it was not for the Executive Authority to instruct
the President of the Supreme Court or the Judicial Authority as to
the action that should be taken. He respected the independence of
the different powers in the Republic, which was another basic element
of democracy.
He informed the Committee that one of the Workers' members
of Costa Rica had described a situation that did not exist in his
country, thereby giving an erroneous impression of the real situation.
His country was about to complete three years of absolute industrial
peace, based on constant dialogue with the representatives
of workers and employers. Just last week a wage increase of between
two and three points above the level of inflation for all workers
in the private sector had been negotiated with the trade union
federation presided over by the same Workers' member. This was a
good illustration of the industrial climate in his country. He added
that the trade union movement had the right to bring all of its concerns
before the Supreme Labour Council, which was composed of
three trade union representatives, three representatives of employers
and three Ministers. The Workers' member in question and his
representative on the Supreme Labour Council had never referred
to the matters that he had raised in this Committee.
On the question of the rapidity with which draft legislation was
examined, he stated that the political situation of the country and its
democratic system made it obligatory to submit draft legislation to
Parliament, which was composed of representatives of the various
sectors of society. The legislation was then discussed in Parliament
in order to reach an agreement. Matters would not be resolved in
his country by means of force. By way of illustration, in the case of
the Bill to transform the subsidy for termination of employment,
the stimulus had come from the political movement that was currently
in power. There had been almost no participation by the
trade union movement. The fact the Bill had not yet been adopted
had not been due to the lack of political will by the Government,
but to matters related to the internal workings of Parliament, which
was sovereign in this respect. The Government's influence had been
important, but not decisive. Being misinformed about this process
meant that those concerned were not aware of how a fundamental
institution of a democratic system functioned.
As regards the restrictions placed on foreigners, he stated that
Costa Rica had shown its solidarity by receiving non-nationals who
19/86
accounted for over 15 per cent of its economically active population.
In accordance with the Political Constitution of Costa Rica,
non-nationals had to be given housing, education and free health,
even if they were not legally resident. The Government had given
migrants the opportunity to obtain a work permit in order to regularize
their work situation, even if their migratory status were not
resolved. The Costa Rican people had given ample proof of its solidarity
towards foreigners throughout its history. Its legislation
would be brought up to date, as stated in this Committee today.
In conclusion, he supported the concept of international labour
law covering labour matters, even within the countries of the region,
as he had stated in interventions on the Report of the Director-
General.
The Workers' members endorsed the opinion expressed by the
Employers' members that some prudence was required in deterffiiBing
the caseuolle. examinednexl..-}"ear. However, they rlled
that, in the case of Costa Rica, their proposal was limited to the
rnmmittee envisaging such an examination if it considered it appropnalt:.
They also agreed with the evaluation of the Employers·
members that some progress could bt: observed on a number of is;;
ue, which had already hcen discussed hy this Committee. However,
they expressed serious reservations as n:gards the two issues
raised by the Cummittee of Experts in its observation. The additional
information provided by the Government representative
might indeed reveal positive developments, as indicated by the
Employers' members. But this case required detailed and in-depth
examination by the Committee of Experts. Finally, they urged the
Conference Committee to request the Government to adopt draft
legislation as soon as possible that was in conformity with the Convention,
as well as the necessary measures to ensure its implementation
in practice.
The Committee took note of the detailed information provided
by the Minister of Labour and observed that, in spite of the direct
contact missions to the country which had taken place in 1991 and
1993, the Committee of Experts observed that significant differences
still remained between, on the one hand, legislation and national
practices, and the provisions of the Convention on the other. The
Committee hoped that the Government would adopt the necessary
measures so that the prohibition on foreigners from holding office
or exercising authority in trade unions would be eliminated, as well
as the serious limitations imposed on the right to organize in the
public sector, and in the agricultural, stock-raising and forestry sectors.
The Committee took special note of the statement made by
the Minister of Labour of Costa Rica who requested technical assistance
from the ILO. It hoped that this technical assistance would
be given rapidly so that the Committee of Experts would be able to
verify that substantial progress had been made in the application of
this fundamental Convention.
19/87
Document No. 258
ILC, 85th Session, 1997, Report of the Committee on the
Application of Standards, pp. 19/93-19/97 (Swaziland)
International Labour Conference ^ Q
Provisional Record
Eighty-fifth Session, Geneva, 1997
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Page
PART ONE: General Report 2
A. Introduction 2
B. General questions relating to international labour standards 4
C. Reports requested under article 19 of the ILO Constitution 36
D. Compliance with specific obligations 50
PART TWO: Observations and Information concerning Particular Countries 59
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 59
A. General Observations and Information concerning Certain Countries 59
B. Observations and Information on the Application of Conventions 62
C. Table of Detailed Reports on Ratified Conventions 129
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 131
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 132
A. General Observations and Information concerning Certain Territories 132
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 133
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 134
IV. Reports on unratified Conventions and Recommendations (article 19 of the Contitution) - General
Survey on Labour Administration in respect of Convention No. 150 and Recommendation No. 158 135
Reports received by 17 June 1997 relating to Convention No. 150 and Recommandation No. 158 . 135
Index by Countries to Observations and Information Contained in the Report 137
19/1
Swaziland (ratification: 1978). The Government supplied the
following information:
With regard to Article 2 of the Convention, the status of the Prison
Staff is comparable to that of the Royal Swaziland Police and the
Swaziland Defence Force: all three are considered as part of the
armed forces.
The obligation for workers to organize along industry lines is not
known to pose any functional problems and no complaints have
been submitted by organizations so far. There is a very small labour
force in Swaziland and the multiplicity of unions within the same
industry may interfere with the strength of labour unions. The risk
facing unions in Swaziland as regards multiplicity is that some unions
may exist on paper only, with no real power. Similarly, the power
of the Commissioner of Labour to refuse to register a union is
due to the small size of the labour force.
There has been a change since the entry into force of the Industrial
Relations Act, 1966. Section 41 (1) of the Act only provides for
consultation of the Minister as opposed to seeking his authorization,
which was the case under the 1980 legislation.
With regard to Article 3 of the Convention, the limitation on the
activities of federations is necesarry to avoid jurisdictional conflicts
between federations and unions. Limits on carrying out political
activities are a question of degree. According to the terms of Section
42(1) of the Industrial Relations Act, 1996, federations are en-
19/93
titled to express views on any matter of public administration and
public policy. Beyond this point, however, federations risk violating
state security-oriented legislation.
Concerning the prohibition of strike action in the postal and
public services, this is due to the importance of these services. The
teaching service, however, has been removed from the list of essential
services (Section 73(6)(a) of the Industrial Relations Act,
1996).
As in any country, the national interest is of paramount importance.
The Minister, however, is not the hnal authority in determining
the national interest: his perception of national interest has to
undergo the test of the court (Section 70 of the Industrial Relations
Act, 1996).
With regard to Section 12 of the 1973 Decree on Meetings and
Demonstrations, it is not the intention of this Decree to restrict labour
organizations which operate as labour organizations (see also
Section 40(2) of the Industrial Relations Act, 1996).
The Industrial Relations Bill of 1995 has now been enacted. The
Employment Amendment Bill is still before Parliament.
In addition, a Government representative, the Minister of Labour
and Public Service, reaffirmed his Government's commitment
to upholding the principles of the ILO as enshrined in its Constitution
and the Declaration of Philadelphia. He supported the sentiments
expressed by various delegations that had reiterated the
need for strengthening the supervisory machinery for the sake of
realizing the goal of social justice. There was an equal need to
strengthen the ILO's advisory services in order for the constituents
to reap the maximum benefit of their membership in the Organization.
Ratification of standards in itself was not enough since, after
ratification, countries needed to implement them. Of the 31 Conventions
ratified by Swaziland, his country had implemented them
all, although some discrepancies had been observed. He referred to
the written information provided to the Committee. Referring to
the observation of the Committee of Experts on the extent to which
the Industrial Relations Act, 1996, was found wanting in relation to
the Convention, he had noted, with great interest, that it acknowledged
that his Government had tried to some extent to bring the
law and practice into line with the Committee's previous comments
on the legislation, by removing the teaching service from the essential
services list. At the same time, some discrepancies had been
observed which needed to be rectified. In a document prepared for
a meeting of the Labour Advisory Board due to take place on
27 June 1997, his Government would bring these points to the attention
of that Board in an effort to bring the recommendations already
proposed by the Labour Advisory Board into conformity
with iLO standards as much as practice allowed. This arrangement
was in keeping with the assurances he had given during the 268th
Session of the Governing Body during which he had stated that his
Government had no aversion to any proposal to amend the current
legislation. His Government was committed to social dialogue and
believed that all doors to social dialogue should be open for all concerned.
The Prime Minister had indicated that the Industrial Relations
Act would be amendedif it threatened the nation's peace. This
policy statement was later drafted into the Government's Economic
and Social Reform Agenda, which was a reform programme with
specific deadlines. If all went well and representatives of both capital
and labour cooperated with the legislative reform programme, a
Bill would be ready by the end of August 1997. The speaker encouraged
the Office to consider focusing technical cooperation in his
country as a matter of urgency. In this regard, a tripartite meeting of
the Swaziland delegation was scheduled in Geneva on 16 June
1997, to be chaired by a senior official of the ILO, and to form part
of an ongoing process of consultation and assistance which had begun
earlier in the year when his Government's attention had been
drawn to the discrepancies in the Industrial Relations Act. It was to
be hoped that such interaction would go a long way towards addressing
the situation through constructive dialogue.
The Workers' members pointed out that the previous year they
had noted that this was one of the most serious cases before the
Committee. It was therefore of grave concern that a further deterioration
rather than an improvement had occurred. The climate of
fear, intimidation and harassment of trade unionists continued. In
its observation, the Committee of Experts had noted that the 1996
Industrial Relations Act not only perpetuated most of the previous
discrepancies between the legislation and the Convention, but contained
new provisions which contravened even further some of the
core requirements of the principles of freedom of association enshrined
in Convention No. 87. The Act imposed penal sanctions for
legitimate trade union activities. Section 30 of the Act granted the
Labour Commissioner the power to refuse registration of a trade
union if a union already existed in that sector. Moreover, the Act
prohibited federations from calling rallies or mass meetings, all of
which was in violation of the principles of freedom of association.
The Committee of Experts made explicit mention of section 40(3)
of the Act which prohibited a federation or any of its officers from
causing or inciting the cessation or slowdown of work or economic
activity upon punishment of imprisonment. Equally severe penalties
applied to organizations or office holders calling for, organizing,
or giving financial support to strikes in essential services. However,
the Act gave a broad definition of essential services and the Minister
of Labour had unilateral powers to amend this definition. The
Attorney-General could apply for an order to stop a strike and the
Minister of Labour could apply to ban a strike on the basis of national
interest which was not defined. The Act severely violated the
right to organize and to strike which was clearly contrary to the decisions
of the Committee on Freedom of Association which had established
that no one should be deprived of their freedom or be
subject to penal sanctions for the mere fact of organizing or participating
in a peaceful strike. The Government had introduced this
Act without any direct consultation with the social partners. Furthermore,
when a tripartite forum rapidly approved a protocol containing
62 unanimously agreed amendments to the Bill, the Government
took no heed and had its own original version of the
legislation adopted. The Workers' members noted that, according
to the direct contacts mission, the Government had been unable to
give any convincing explanation for the refusal to amend the legislation
so as to take account of the subsequent proposals of the Labour
Advisory Board submitted during March 1996. These proposals
were substantially similar to those contained in the tripartite
protocol. In addition to this new Act, there were other legislative
provisions which violated the requirements of Convention No. 87.
The 1973 Decree on meetings and demonstrations restricted the
right of organizations to hold meetings and demonstrations. Under
the Public Order Act, 1963, police permission was needed for certain
meetings and public gatherings. Moreover, the police could attend
union meetings. Recent events gave cause for great concern.
In January 1997, the Swaziland Federation of Trade Unions
(SFTU) called a stay-away in an attempt to put pressure on the
Government to negotiate 27 demands which related, inter alia, to
economic, labour, social and affirmative action issues and called for
the lifting of the state of emergency, imposed since 1973, which remained
in force. Tripartite discussions had agreed that immediate
action could be taken on 16 of these 27 demands if the political will
to do so was there. The Committee on Freedom of Association had
decided that the two actions taken in support of the 27 demands—
one in January 1996 and another in January 1997 —constituted legitimate
trade union activity. It had considered that the declaration
of illegality concerning these national strikes, taken in protest
against the social and labour consequences of the Government's
policy, constituted serious violations of freedom of association.
The Workers' members outlined other infringements, in practice,
of the Convention: between the night of 31 January-1 February,
1997, four leaders of the SFTU were arrested under section 12
of the Public Order Act, 1963, on charges related to intimidation,
for which bail was not granted. All were subsequently acquitted. In
dismissing the case, it was reported that the judge used harsh words
to the effect that there had never been a case to answer in the first
place. This reflected a similar position taken by the judge who had
presided over the case against Mr. Jan Sithole of the SFTU and other
trade union leaders taken in January 1996, and who was subsequently
demoted. The Government was openly using the media to
threaten trade unionists and trade union activity. There was evidence
of intimidation of the media not to give coverage to trade
union activities or the SFTU. The Workers' members noted that,
despite the comments made by the Government representative in
the discussion of this case last year, broadcasting was still listed in
section 73 of the Industrial Relations Act as an essential service,
despite the pertinent decisions of the Committee on Freedom of
Association. The Government was continuing to use the police and
armed forces directly to break up trade union meetings and disrupt
legitimate trade union organization, such as the 1 February 1997
raid and search without warrant of the SFTU offices. It was using
bullets, tear gas and beatings to break up assemblies, such as the
11 February 1997 shooting at Big Bend. It was perpetuating and
intensifying the climate of fear and intimidation surrounding trade
unions and trade union activity, such as the incident on 3 February
1997 when 150 armed police fired on 23 General Council members
of the SFTU and ordered them to go to a local police station where
they were locked in a tear gas filled room, beaten and individually
questioned for several hours. It was extending the violence and intimidation
to encircle the families, friends and relatives of those
trade unionists, such as the February 1997 harassment of
Mr. Sithole's mother and close relatives while he was in jail. The
Workers' members stressed that the Committee on Freedom of
Association had stated clearly that freedom of association could
only be exercised in conditions in which fundamental human rights
and, in particular, those relating to human life and personal safety,
were fully respected and guaranteed. Violence, fear and intimidation
and the lack of freedom of expression were incompatible with
Convention No. 87, as was the lack of democratic process. So it was
19/94
with deep concern that the Workers' members noted that there had
been no progress on changing the national Constitution, since Swaziland
was the only south African country where multi-party democracy
had not been introduced. The suspension of the SFTU was
now lifted, but not so for the trade unions which had been deregistered
under the Act just two weeks ago, and which had lost their
right to function, to collective bargaining and to represent their
members on the Labour Advisory Board. This deregistration had
been carried out by the Labour Commissioner on the spurious
grounds that the unions had not submitted their annual returns,
even though the Act did not define the period of the financial year.
Such administrative dissolution of trade union organizations constituted
a clear violation of Article 4 of the Convention and was a
measure which should be taken only by judicial decision so that the
rights of defence were fully^uaranteed.
The Workers* members urgeù the L-unmmicc u» adupi extremely
firm conclusions in this case since the Government appeared, at
procedures and authority of the ILO. It was time to give a clear
message to the Government as there had been ample opportunity
to make progress and this had not happened. In practice, inc situation
had deteriorated. Specifically, the Workers' members wanted
to see, within a clearly defined timetable, progress in accordance
with the comments of the Committee of Experts and the decisions
of the Committee on Freedom of Association on the following
points: amendment of the 1963 Public Order Act so that it would no
longer be used to oppress legitimate and peaceful strike action in
contravention of the principles of freedom of association; repeal of
section 12 of the 1973 Decree which placed important restrictions
on the right of organizations to hold meetings and demonstrations,
so that trade union organizations could operate freely without fear
of police interference in trade union affairs; amendment of the 1996
Industrial Relations Act to bring it into conformity with the requirements
of the Convention, giving due consideration to the proposals
made by the Labour Advisory Board. They asked that the
Government ensure that the social partners were fully involved in
this process and that the technical assistance of the ILO be sought
so that progress could be reported before the next meeting of the
Governing Body in November 1997; that it stop any further harassments,
threats, malicious arrests, intimidation and victimization of
workers, their leaders and their families; and authorize freedom of
the press and freedom of expression; establish independent inquiries
into the many incidents which had taken place over recent
months, including the dismissal of Mr. Jabulani Nxumalo, Assistant
General Secretary of the SFTU; and enter into positive and meaningful
negotiations on the 27 demands. The Workers' members concluded
that this was a case of the most gross, wide-ranging and fundamental
violation of the Convention and the principles of freedom
of association. The Government should immediately commit itself
to the full implementation of the recommendations of the direct
contacts mission in a defined, short period of time and accept permanent
monitoring of the implementation of these developments
by the ILO.
The Employers' members recalled that the application of Convention
No. 87 by Swaziland had been already examined by the
present Committee in 1996. This case involved numerous restrictions
on the exercise of the fundamental rights and freedoms guaranteed
by the Convention and, in particular, interference in the internal
affairs of the trade unions; the non-recognition of the right of
association of a certain group of workers; the power of the Labour
Commissioner to refuse to register trade unions if he was satisfied
that an already registered organization was sufficiently representative;
and the restrictions of the right to organize meetings and to
hold peaceful demonstrations. These were flagrant violations which
were, on the whole, the same that had been brought to light last
year. On the question of restrictions on the right to strike, the Employers'
members referred to their own well-known position according
to which the point of departure was not an unlimited right
to strike. There was no basis in the Convention for the unlimited
right to strike, the provisions of the Convention would be infringed
where the right to strike was constrained to such an extent that it no
longer existed. He recalled that strikes always had an impact not
only on the interests of the conflicting parties but also on the rights
of persons who were not concerned with the conflict of interests. It
was also reasonable to balance the interests of the conflicting parties
on the one hand, and of the general public on the other. As for
what concerned the qualified majority required when voting on
strike action, it was not excessive in itself. What was worrying was
that the Industrial Relations Act, 1996, worsened, not improved,
the situation. Referring to the direct contacts mission which had
taken place last year, they stated that an invitation for such a mission
usually constituted proof of the readiness of the Government
to change its law and practice to improve the situation. However,
the position of the Government with respect to the required changes
remained unclear. Although the Government representative
mentioned, for example, the existence of tripartite consultations, he
did not explain in which manner and on what subjects these consultations
were held.Tuming to the conclusions of the contacts mission
report, the Employers' members recommended to incorporate
those points into legislation on which the social partners had already
reached an agreement. The Government should accept these
recommendations and incorporate them into the legislation. It
should provide detailed information, so as to enable this Committee
to review the case, if necessary.
The Workers' member of Swaziland pointed out that his country
was a signatory to various national instruments but had been in a
state of emergency since 12 April 1973 when the rights of citizens
had been usurped. This left workers as the only voice for the downtrodden
and they had presented to the Government the popular "27
demands" which dealt with, inter alia, labour-related, economic,
nuraan anu civii rights issues, i he (jovcrnmenl had ignored the demands,
but the SFTU asked for a tripartite forum to look into them
-L--~~h ^-nlnpnr A -r-n.r* nf irirnirlilc structures wns thus set up
which deliberated on all the issues and advised the Government
accordingly, but again, it ignored all their recommendations. Several
international and regional workers' organizations visited Swaziland
between 1995 and 1997 in order to help find a solution and
their advice was also ignored by the Government oh the pretext
that it constituted foreign interference in national sovereignty. The
Government's inaction had been met with a wave of industrial action,
to which the authorities reacted with arrests and the shooting
of workers, the lodging of applications in the High Court, for court
injunctions to declare intended strikes unlawful; the issuing of ex
traordinary gazettes declaring the strike unlawful if the Government
failed in its court applications; and judges who refused applications
would suffer reprimands, demotion and/or dismissal. He
considered that the Government had acted in bad faith since it acknowledged
the violations of the Convention before international
fora and yet remained intransigent at home. The Government had
deceived the social partners because it had promised to table
amendments to the Act in March 1996, but to date, no such amendments
were before Parliament. Furthermore, the Government was
not truthful when it stated that it was not aware that trade unions
were being harassed: its security forces regularly raided trade union
offices, interrupted trade union meetings, detained and arrested
trade union leaders and members (including the 23 members of the
general council of the SFTU) and physically assaulted them. After
describing some of the infringements in practice of the Convention,
the speaker stated that the 1996 Act's provisions were a flagrant
legislative violation of the Convention and in serious breach of the
principles of freedom of association. He expressed the belief that
Swaziland and other Governments which were also members of the
ILO Governing Body must be advocates and die-hard defenders of
ILO principles, especially social justice; and, as such, must lead by
an example of exemplary behaviour. Therefore, he agreed with the
Committee of Experts and the Committee on Freedom of Association
that the Government should bring the legislation into conformity
with the requirements of the Convention. The 27 demands
should be dealt with seriously once and for all. A clear deadline had
to be set for the Government specifying when these issues would
have to be tackled and resolved, and the ILO's technical assistance
could help in the amendment of the Act. He proposed that this case
be mentioned in a special paragraph of the Committee's general report.
The Employers' member of South Africa pointed out that in this
case there had been many promises but little progress. The Committee
of Experts' observation noted that not only did the 1996 Industrial
Relations Act perpetuate the previous discrepancies between
the legislation and the Convention, but it contained new
provisions which further contravened the terms of the Convention.
The Government's behaviour in drafting this Act disclosed a series
of breaches of undertakings made to the social partners. In March
1994, a tripartite committee had been established by the Government
to consider a series of demands made by the SFTU and significant
progress had been made on 21 of the 27 points raised by the
Federation. Although the Government expressed its support tor
some of the recommendations of the tripartite committee, it indicated
that it would formulate its own proposals in the form of
amendments to the legislation. Early in 1995, the Government published
a draft Bill for comment and later tabled it in Parliament but
the social partners had not been consulted. Further discussions
were held between the Government and the social partners before
the Bill reached the Senate because there was general disagreement
with a number of its provisions. In July 1995 the tripartite forum
adopted a resolution to the effect that it would identify unacceptable
aspects of the Bill and attempt to agree on amendments
acceptable to all parties. The Government undertook to submit
these amendments at the same time as the Bill was presented to the
Senate. In September 1996 the tripartite forum formally adopted a
protocol containing 65 proposed amendments to the Bill. However,
19/95
the Government introduced the Bill to the Senate without the
amendments. The parties in the tripartite forum expressed their dismay
over this turn of events and the Government's good faith was
questioned. After the enactment of the Act, further efforts to review
it were initiated and the SFTU's concerns were referred to the
Labour Advisory Board, which in March 1996, submitted proposals
for amendments to the Minister. They had not yet been introduced
in Parliament. So the history of this legislation reflected some form
of general agreement between the social partners, but mostly a history
of unfulfilled promises by the Government. The direct contacts
mission that had visited Swaziland in October 1996 noted that no
convincing explanation could be given by the Government for either
its unilateral decision to redraft the Act or for its refusal to
introduce the amendments to the Act proposed by the Labour Advisory
Board. Therefore, while he had noted the Government representative's
expression of support for the ILO's Constitution and
Conventions, what was needed now was some progress in Government
action. It should move without further delay to implement the
recommendations of the direct contacts mission, with guidance and
technical assistance from the ILO.
The Workers' member of the United States pointed out that this
was the second consecutive year that this case, which involved fundamental
violations of the Convention, was before the Committee.
In addition to the violations of a legislative nature, as reflected in
the observation of the Committee of Experts, this Committee had
heard in great detail about the violations in practice, in particular
the intensifying campaign of intimidation and harassment of union
leaders and their families. This pattern of behaviour by the Government
demonstrated its disdain for the ILO and this Committee.
However, it was important to point out to the Government that its
behaviour had caught the attention of the Committee of Experts
and this Committee, as well as that of the international community.
Therefore its days of operating in relative obscurity had passed.
The Workers' members were following closely the developments in
the country since the personal safety and welfare of members of the
SFTU were at stake. If the Government intended to take its obligations
arising from the Convention seriously, it had to put an immediate
end to its campaign of intimidation and harassment against
trade unions and their leaders. Moreover, it had to return immediately
to the bargaining table with the SFTU and the employers to
negotiate in good faith a revision of the Industrial Relations Act.
This year, the Committee should send to the Government an even
stronger message than its 1996 conclusions in the hope that it could
be influenced to choose the path of the rule of law and respect for
basic worker rights, rather than that of repression and increasing
international condemnation.
The Workers' member of Zambia asserted that the Government
representative had repeated the assurances that his Government
had given to this Committee in previous years and had stated nothing
new this year. Therefore he fully supported the view that the
Government should commit itself immediately before this Committee
to engage in effective and genuine dialogue with the workers
and employers of Swaziland with a view to amending the Industrial
Relations Act and other labour laws in line with international labour
standards. Moreover, this action should be accomplished in a
short time-frame.
The Government member of the United Kingdom welcomed
the fact that a direct contacts mission to Swaziland had taken place
and was pleased to note the readiness of the Government to continue
its dialogue with the ILO. He supported the Government's request
for further technical assistance to tackle the problems which
had been identified. While his Government had been very concerned
over the arrest in early 1997 of the principal trade union
leaders of the SFTU, and had made those concerns clear to the authorities
at the time, he was very glad that they had since been released.
The Committee of Experts' observation had noted that the
Industrial Relations Act, 1996, still contained a number of discrepancies
with the provisions of the Convention. He was pleased to
hear that the Swazi Government intended to rectify the situation
and hoped that it would turn this commitment into concrete action
as soon as possible.
The Workers' member of Norway, speaking on behalf of the
Nordic Workers of this Committee, expressed grave concern over
the violations of the Convention. In spite of appeals by the international
community, missions from the ILO and the International
Confederation of Free Trade Unions and interventions from trade
union leaders from neighbouring countries, the Government had
continuously harassed Swazi trade unions and their leaders. She
fully supported the comments made by the Committee of Experts
on the Industrial Relations Act. It was disturbing that a so-called
democratic country still thought it was acceptable for workers not
to have the right to strike, for unions to face major restrictions on
their right to hold peaceful demonstrations and meetings or for the
court to wind up a federation which had been actively campaigning
on matters that were defined as political issues but that could not
in fact be distinguished from occupational issues. Moreover, trade
union leaders had been imprisoned, including the four senior leaders
of the SFTU, for having threatened to go on strike over labour
demands. Although they were finally released, democratic reforms
and the opening of negotiations did not follow and matters had
worsened. Just before the present Conference she had heard that
the Government had suspended the activities of the SFTU and the
17 unions affiliated to it apparently because of failure to submit on
time the 1996 financial reports. It was incomprehensible that trade
union activities could be suspended for this reason. She assured
Swazi workers that they had the support of the Nordic trade unions.
The right to carry out trade union activities, including the
right to strike, was so fundamental in Nordic countries that it was
hard to believe the action taking place in Swaziland. It was not acceptable
that in 1997 workers were denied their most fundamental
rights.
The Government member of the United States supported the
statement of the Government member of the United Kingdom and
hoped that the recommendations of the direct contacts mission to
Swaziland would be implemented soon.
The Workers' member of the United Republic of Tanzania endorsed
the concern expressed by his colleagues concerning the
gravity of the situation in Swaziland. The Government should in no
way be proud of the fact that it had ratified 31 ILO Conventions
while in practice it violated them daily. He therefore insisted that
the Government adopt a clearly defined timetable of action towards
applying the Convention, including the repeal of the Industrial
Relations Act. It further needed to engage in much-needed dialogue
with the SFTU.
The Workers' member of Zimbabwe indicated that the situation
in Swaziland, contrary to the promises made here by the Minister in
1996, had deteriorated significantly. The Committee of Experts had
identified two aspects to the problem, namely the national legislation
and the situation in practice. The Industrial Relations Act,
1996, contained new provisions which contravened the Convention
even further as highlighted in the Committee of Experts' observation.
In practice, the Government had been harassing the leadership
of the SFTU, together with the use of force to prevent workers
from holding meetings and exercising their other rights under the
Convention. While he supported the need for dialogue, he considered
that the authorities were using dialogue as a delaying tactic.
This Committee needed to act decisively by including this case in a
special paragraph of its report.
The Government member of Zambia, the Minister of Labour
and Social Security, expressed his concern over developments in
Swaziland. He was of the view that the Government should take
steps to move towards democratization and labour rights as had occurred
in other countries in southern Africa. Only this could really
ensure respect for trade union rights.
The Government representative indicated that he took seriously
what had been stated in the Committee. It was obvious from the
observation of the Committee of Experts, from the recommendations
of the direct contacts mission, as well as from the debate that
had just taken place, that the basic problems in respect of the Convention
stemmed from the adoption of the Industrial Relations Act,
1996. He reassured the Committee that he had not just made empty
promises; his country was genuinely ready to ensure that the provisions
of the Convention were complied with. He assured the Committee
that the document that had been prepared by the Labour
Advisory Board with ILO technical assistance would be discussed
on 27 June 1997, and that the social partners should be fully involved.
The final amendment Bill would be passed through Parliament
by August 1997. He concluded by stating that his Government,
like this Committee, wanted the national legislation to be in
conformity with the Convention and would take the appropriate
measures.
The Workers' members noted that the Government representative
had focused his reply on discussions that had taken place in
relation to the Industrial Relations Act. However, the conclusions
of the direct contacts mission went beyond the Act, since they also
related to infringements in practice of the Convention. All that was
required was that the Government agreed to commit itself to implement
immediately all the recommendations of the direct contacts
mission, including those concerning issues beyond the Act. The
Workers' members also wanted a permanent monitoring of its attempts
to implement these recommendations.
The Employers' members, referring to the recommendations of
the report made by the direct contacts mission, insisted on their immediate
implementation, particularly with respect to the questions
on which the social partners had reached an agreement. Rapid
changes were necessary to improve the situation and it would be
necessary to review the case in the near future taking into account
the regrettable further deterioration in the situation after the direct
contacts mission. The Government should supply a detailed report
on the amendments and changes brought to the situation. The Em-
19/96
players' members supponed the proposal to mention this case in a
special paragraph of the Committee's report.
The Committee took note of the written and oral information
supplied by the Government representative, as well as the discussion
which ensued. The Committee noted the concern expressed by
the Committee of Experts and the Committee on Freedom of Association
that, despite a direct contacts mission in October 1996 and
specific progress concerning the education sector, the Industrial
Relations Act, 1996, contained provisions which further violated
the fundamental principles of freedom of association. The Committee
expressed its deep concern for the numerous and major discrepancies
between the national law and practice on the one hand, and
the provisions of the Convention on the other. The Committee
urged the Government to respect fully the civil liberties essential to
the implementation of the Convention and_ to appLv very rapidly the
re-u•111in·11Jdl1,m, ,)(the <lir;;cl <:untacb 111i"io11, pan,culariy lhose
already agreed upon by the social partners. The Committee also
"·:···' ,;". r:.-·•:·'."···•:·! !" :1k::: :: ;-.·.: ·;·---!·. .:. !.i'--·-.:.:..:..i.j --· --.uni.t.=:.1i.:
lhe re5trictions on the right of workers to constitute organizations
of their own choice. to hol<l meetings and to demonstrate peacefulf)\
tn ft)rrnuLtte tlh:ir progru11n1e:-. of ;-H.:tic,n nd t11 h1rgain ('ulll'.tively.
The Committee tmst"d that the next report would indicate
detailed measures adopted by the Government, with the assistance
of the Office, to secure the full application of the Convention. The
Committee decided to mention this case in a special paragraph of
its report.
19/97
Document No. 259
ILC, 87th Session, 1999, Report of the Committee on the
Application of Standards, pp. 23/106-23/109 (Canada)
International Labour Conference
Provisional Record
Eighty-seventh Session, Geneva, 1999
23
PART ONE
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Page
PART ONE: General Report 2
A. Introduction 2
B. General questions relating to international labour standards 6
C. Reports requested under article 19 of the Constitution 46
E. Compliance with specific obligations 68
PART TWO: Observations and Information concerning Particular Countries 77
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 77
A. General Observations and Information concerning Certain Countries 77
B. Observations and Information on the Application of Conventions 81
C. Table of Reports on Ratified Conventions 149
D. Statistical Table of Reports Received on Ratified Conventions as at 17 June 1999 (article 22 of
the Constitution) 151
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 152
A. Information concerning Certain Territories 152
B. Table of Reports on Ratified Conventions (Non-Metropolitan Territories) 153
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 154
IV. Reports on unratified Conventions and on Recommendations (article 19 of the Contitution) —
General Survey on Migration for Employment Convention (Revised) No. 97 and Recommendation
(Revised) No. 86, 1949, and on Migrant Workers (Supplementary Provisions) Convention No. 143
and Recommendation No. 151,1975 156
Reports received by 17 June 1998 relating to Convention No. 97 and 143 and Recommendations
Nos. 86 and 151 156
Index by Countries to Observations and Information Contained in the Report 157
23/1
Canada (ratification: 1972). A Government representative referring
to an International Confederation of Free Trade Union's
(ICFTU) document, noted at the outset that the ICFTU
recognized in this publication that Canadian workers in both the
public and private sectors had freedom of association to enable
them to form and join trade unions. In addition, it was noted that
Canadian legislation
prohibited anti-union discrimination and
required employers to reinstate workers fired for union activities,
including strikes. He observed that other quotes from the
document specified that workers
in both the public (except for
some police) and the private sectors
had the right to organize
and bargain collectively in law, although
not always in practice
and that most workers had the right to strike.
The speaker recalled that Canada recognized the key
importance
of observing ILO principles on the right to organize
and collective
bargaining and protecting workers' rights.
However, he stressed that governments, including the federal,
provincial and territorial
governments of Canada, were elected
to make decisions and exercise their responsibilities for the
welfare of their populations
as a whole. Governments had both a
mandate and a duty in democratic societies to reconcile legitimate,
but divergent, interests and conflicting demands for the greater
public good. Referring to the specifics of the Committee of
Experts' observation, he recalled that the Canadian Constitution
recognized that the provinces had full control over labour
relations within their jurisdiction. The information,
therefore,
provided to the Committee and concerning provincial
laws and
practices, had been submitted by the provincial governments
concerned.
Regarding the experts' observation on the procedure for the
designation of "essential employees" under Newfoundland's
Public Service Collective Bargaining Act, the speaker indicated
that the public consultation process to which the Committee of
Experts had referred had been completed. The joint labour and
management Working Group of the Economic Advisory Council
had submitted a detailed report with recommendations to the
government concerned.
A copy of the report would be provided
to the Committee. The Working Group's recommendations on the
issue of designation of essential employees were generally
supportive of the provisions in the Public Service Collective
Bargaining Act pertaining to essential
employees. In addition, an
interdepartmental working group of the Newfoundland
Government had completed its analysis of the recommendations
and is now awaiting final directions. The speaker also specified
that in the early 1990's there was some activity at the provincial
Labour Relations Board related to establishing the process
to
designate essential employees. In all instances, labour and
management voluntarily came before the Labour Relations Board
with a joint agreement on employees to be designated as essential.
It appeared that this represented a full endorsement by both
labour and management for the existing provisions in the Act. The
Newfoundland
Government, therefore, did not anticipate
having to make further amendments to legislation governing
essential employees
at this time.
Turning to the right to strike for hospital workers under the
Province of Alberta's Public Service Employee Relations Act, he
informed the Committee that in Alberta, at approved hospitals as
defined by the Minister of Health, employees did not have the
right to strike, nor employers the right to lockout. Approved
hospitals included acute care facilities, but did not include
community health services, mental hospitals and some long-term
care facilities. At these other facilities and services, employees
did have the right to strike and the employer had the right to
lockout. Under the relevant
Alberta legislation, the right, or not,
to strike/lockout depended
more upon the nature of the
organization providing the service rather than the type of work
which employees performed within the organization. In fact the
entire health care system in the province was regionalized about
five years ago and although the government currently had no plan
to amend its legislation, it continued to monitor
how the labour
relations framework was working, as service delivery evolved
and became more integrated with a regionally coordinated
system.
23/106
Regarding the Committee of Experts' observation on restrictions
on the right to organize in agriculture and horticulture in the
Provinces of Alberta, Ontario and New Brunswick the speaker indicated
that, as regards Alberta, although primary agriculture farm
workers were excluded from coverage under Alberta's labour relations
legislation, there were no provisions in the labour legislation
which would specifically prohibit any of these workers from voluntary
negotiations with employers for whom they might perform
services. In this regard, he gave the example of voluntary negotiations
held outside the parameters of Alberta labour legislation between
the province and the Alberta Medical Association. This
group negotiated provincial fee schedules for its member physicians.
Also, medical residents who were also excluded from the
scope of the collective bargaining general scheme had negotiated
terms of employment with the province's teaching hospitals.
As regards Ontario, the speaker stated that there were legitimate
reasons for the exclusion of certain employees from statutory
bargaining rights under Ontario's Labour Relations Act, but that
the excluded workers continued to be free to form voluntary associations
or unions outside the statutory collective bargaining regime.
The unique characteristics of, and the nature of employment in, the
agricultural sector raised serious questions as to the suitability and
propriety of the regime of collective bargaining contemplated by
the Labour Relations Act, in particular the dispute resolution
mechanisms upon which collective bargaining depended, namely
the right to strike and lockout, and compulsory arbitration.
As regards New Brunswick's labour relations legislation that a
bargaining unit of agricultural workers comprised five or more employees,
he stressed that this condition was necessary in order to
free small agricultural, family farms from inappropriate legislative
requirements.
The speaker expressed his Government's satisfaction at the positive
comments made by the Committee of Experts in paragraph 3
of its observation, as regards the adoption of the federal legislation
Bill C-19, an Act to amend the Canada Labour Code, and in particular,
its prohibition of the use of replacement workers to undermine
a union's representational capacity. Finally, he stressed his Government's
acknowledgement and will to fully cooperate with the ILO
supervisory system with respect to recently arisen cases currently
before the Committee on Freedom of Association.
The Worker members expressed their gratitude to the Government
for the information provided. They recalled that Canada had
ratified the Convention in 1972 and that the Committee of Experts
had reported several problems in the application of Articles 2 and 3
of the Convention in a number of provinces. In particular, the Committee
had first and foremost requested additional information on
the situation in the Province of Newfoundland. The Newfoundland
Government had informed the Committee of Experts that it had
introduced an effective procedure for the designation of "essential
workers" and that the joint labour-employer working group had
submitted a report proposing an amendment to the legislation on
freedom of association. The Worker members had requested the
Government to inform the Committee of Experts on the latest developments
in this regard.
The Committee of Experts had also requested additional information
from the Government of Alberta in respect of essential
services in the health care sector. The Worker members expressed
their support for the position clearly established by the Committee
of Experts regarding the right to strike and regarding the few situations
where this right could be restricted. The Worker members did
not intend to discuss the modalities of the right to strike in the context
of this case. Furthermore, they pointed out that trade union
problems such as those experienced in the field would shortly be
raised by the Worker member of Canada. Nevertheless, the Worker
members had requested the Government's response to the issues
raised by the Committee of Experts and the Government's assurances
that the application of its legislation would be in conformity
with Article 3 of the Convention, which provides that trade union
organizations have the right to formulate their programmes of action.
Moreover, the Worker members emphasized that point 3 of
the Committee of Experts' report referred to fairly serious violations
of Articles 2 and 3 of the Convention in the Provinces of Alberta,
New Brunswick and Ontario. In particular, the Worker members
criticized the recent laws passed in the Province of Ontario,
which blatantly violated the Convention.
The Committee on Freedom of Association had recently received
several complaints and it had formulated conclusions in
Case No. 1900 regarding the denial of trade union rights to workers
in the agricultural and horticultural sectors, kitchen workers, architects,
lawyers, doctors and other categories of workers in the Province
of Ontario. According to information received, several of these
categories of workers had in fact established organizations and had
concluded collective agreements. In Case No. 1900, the Committee
on Freedom of Association had also noted that the new Act had
also had negative repercussions on the right to organize in enterprises
which had been bought out or taken over by the construction
industry. Moreover, the Committee on Freedom of Association was
currently examining Cases Nos. 1951 and 1975 concerning the prohibition
on freedom of association for certain categories of workers,
such as heads and deputy heads of schools and workers participating
in social welfare programmes in the Province of Ontario. In this
regard, the Worker members requested the members of the Committee
on Freedom of Association to scrutinize the text of Case
No. 1900, relative to the denial of trade unions rights to workers in
the agricultural and horticultural sectors, to kitchen workers and
other categories of workers. The 1995 Act had amended labour relations
legislation in Ontario and now excluded categories of
workers from essential legislation guaranteeing the effective exercise
of the right to organize. The Worker members considered that
this constituted an explicit and deliberate denial of a fundamental
right and principle. They quoted in this regard the statement made
by the Government of Ontario in paragraph 181 of Case No. 1900,
referred to by the Committee of Experts: "The Committee notes
that the Government considers that a statutory labour relations regime
and collective bargaining dispute resolutions mechanisms are
inappropriate for agricultural and non-industrial workplaces because
of the low profit margins and unstructured, highly personal
working relations". The Worker members considered that if this
line of reasoning were to be followed, the majority of workers in the
world especially in developing countries would be deprived of trade
union rights. Moreover, the Government of Ontario had pursued a
deliberate policy. Act No. 22, which took effect on 18 December
1998, pursued a specific and explicit objective mentioned as such in
the text, namely, the Act denied workers participating in social assistance
programmes the right to join trade union organizations.
Another Act, dated 1 December 1997, excluded heads and deputy
heads of schools from the scope of labour relations legislation and
also significantly modified their collective rights. The Government
of Ontario and the federal Government had also argued that these
categories of workers could enjoy freedom of association under the
common law system. However, under the Canadian legal system,
freedom of association was ineffective beyond the framework of
fundamental labour relations legislation.
In conclusion, the Worker members requested that the conclusions
take account of the fact that the fundamental rights and principles
were being jeopardized in the Provinces of Alberta, New
Brunswick and Ontario. Moreover, they insisted on the importance
of Articles 2 and 3 of Convention No. 87, namely, that all workers,
without distinction whatsoever, should have the right to establish
and join trade union organizations and that these organizations
should have the right to formulate their programmes of activity. Finally,
the Worker members emphasized that the pertinent legislation
should be amended without delay to enable Canada to respect
its international obligations with regard to the rights and fundamental
principles recognized in Articles 2 and 3 of the core Convention.
The Employer members noted the information provided by the
Government representative which supplemented the facts illustrated
in the observation by the Committee of Experts. He further noted
that a part of the Committee of Experts' comments had highlighted
recent legislative developments in the country. The
observation, however, contained some aspects with which the Employer
members could not agree. He said that the right for workers
and employers to establish organizations of their own choosing
without previous authorization, including the right to formulate
their programmes, as enshrined in Articles 2 and 3 of the Convention,
constituted a good point of departure for the comments that
had been made by the Committee of Experts. With reference to the
situation in Newfoundland, he noted the statement by the Government
representative to the effect that the social partners had agreed
on the necessary legislative reform process, which had shown that
tripartite consultations on the subject had taken place. In this respect,
he supported the Committee of Experts' wish to be kept informed
of developments in this regard. As regards the Province of
Alberta, the situation was different, and the restrictions concerning
the right to strike for hospital workers had been imposed by law.
However, the strike ban was not applicable to all hospitals but only
to some. The speaker referred to the Committee of Experts' point
of view on the right to strike, which was considered to be a right
substantially deriving from the right to organize and that, therefore,
any restriction thereof should be limited to public servants exercising
authority in the name of the State or to essential services in the
strict sense of the term as defined by the Committee of Experts. In
contrast, the Employer members were of the opinion that the State
had the right to define the term "essential services". They emphasized
that the concept "essential services" could not be understood
by a mere reference to the text of Convention No. 87. Although the
Committee of Experts might wish to discuss the question whether
or not work by kitchen staff, porters and gardeners constituted essential
services in hospitals, such a discussion could not be part of a
discussion regarding the application of the Convention. With respect
to the rather positive observations regarding the adoption of
Bill C-19, an Act to amend the Canada Labour Code (Part 1),
which according to the experts had brought the legislation into
greater conformity with the principle of freedom of association, he
thought that in this respect the provisions concerning the right to
strike and the right to lock-out had no relevance regarding the implementation
of the principle of freedom of association. As regards
the right to organize in agriculture and horticulture, they recognized
certain lacunae in the law in this respect. However, the question
whether or not the right to strike was restricted in this sector
was neither a subject related to the Convention nor an issue raised
by the Committee in their observation. In conclusion, the speaker
recalled that the Employer members had always had a different
view than the Worker members regarding the right to strike and
that the Employer members agreed to disagree on this point. For
this reason, he refrained from once again reiterating the wellknown
Employer members' argument on the subject. However, the
arguments underlying the Employer members' view on the subject
would be found in paragraphs 115 to 134 of the 1994 Conference
Committee's report as well as explanations regarding the mandate
of the Committee of Experts which has existed since 1926.
The Worker member of Canada stated that violations of the
Convention in Canada were a persistent reality. To support this
statement, he recalled the large number of cases concerning Canada
which were brought before the Committee on Freedom of Association
(CFA) and in which the CFA adopted conclusions calling on
the Government to take measures to comply with the Convention.
He regretted that very rarely, if ever, were the conclusions complied
with. He recalled that, in 1985, a study and information mission was
sent to Canada in view of the numerous cases of violations of basic
principles of freedom of association. Ten years later, in 1995, the
Government rejected the recommendation of the CFA that it make
use of the assistance of the Office, in particular through an advisory
mission. Shortly after. Bill No. 7 was introduced in which the Government
of Ontario excluded agricultural and domestic workers
and certain specified professionals from access to collective bargaining
and the right to strike; terminated the existing organizing
rights of these workers; nullified their current collective agreements;
removed the statutory measures for protection against antiunion
discrimination and interference on the part of the employer;
removed successor rights and related employers' rights from Crown
employees; and eliminated successor employer protection from
workers in the building services sector. Bill No. 7 gave rise to an
additional case before the CFA (Case No. 1900). In its recommendation
on this case, the CFA strongly recommended that necessary
measures be taken to ensure that these workers enjoyed the protection
necessary to establish and join organizations of their own
choosing; to ensure that the right to strike was not denied; to guarantee
access for these workers to machinery and procedures which
facilitated collective bargaining; to ensure that these workers enjoyed
effective protection from anti-union discrimination and employer
interference; to ensure that these organizations were re-certified;
to revalídate the collective agreements pertaining to
agricultural workers and professional employees; to ensure that the
right to organize and collective bargaining rights were adequately
protected in building services; and to draw the attention of the
Committee of Experts to the legislative aspects of this case. The
speaker stated that these recommendations had not yet been complied
with. On the contrary, in the 309th Report of the CFA (March
1998) the Government indicated that it did not intend to amend the
legislation to remove the exclusion of agricultural workers from any
such statutory labour relations scheme. The speaker considered
that this position was particularly questionable considering that agricultural
workers and domestic workers were among the most vulnerable
workers and that this type of work was often done by immigrant
workers who worked in an environment where decent
working conditions did not exist. Underlining the Government's
statement that Bill No. 7 had established the appropriate balance of
power between unions and employers and had facilitated productive
collective bargaining, which the Government views as an important
component of its strategy to strengthen the economy and
create jobs, the speaker considered that to take away such fundamental
rights such as the right to join a union, the right to strike and
the right to negotiate from groups of workers was a strange way to
establish an appropriate balance of power. The same was true for
the Alberta case, where the right to strike was also denied to a
group of workers who were not in any essential services in hospitals,
such as gardeners.
The speaker noted the oral information provided by the Government
as regards the case of Newfoundland and looked forward
to examining the report to which the Government referred.
The speaker went on and recalled that, since Case No. 1990, six
new complaints had been filed before the CFA. The first concerned
Manitoban teachers to whom the right to strike was denied and for
whom certain matters were excluded from collective bargaining or
23/107
from the jurisdiction of interest arbitrators (Case No. 1928 (Manitoba),
310th Report).
The second case dealt with the Government interference in arbitration
and labour tribunals (Case No. 1943 (Ontario), 310th and
311th Reports).
The third case in which ILO assistance was recommended concerned
the taking away of the principals' and vice-principals' right
to organize, to strike and to negotiate; the interference in the collective
bargaining process and the elimination of other protections
(Case No. 1951 (Ontario)).
The fourth case dealt with a legislation entitled An Act to prevent
unionization. This law ensured that people who were on social
assistance and forced to work for the State so as to receive their
social assistance would not have the right to join a union to be able
to negotiate working conditions that used to exist for this type of
work. For the speaker, in Canada, "workfare" was a new name introduced
so as not to use "forced labour" (Case No. 1975 (Ontario)).
The fifth case concerned a back-to-work legislation introduced
to end a strike in the postal service. The law was introduced right at
the beginning of the strike to ensure that the right to strike provided
by law was not going to be available to the workers. In this case the
right to strike was taken away so that workers would have no collective
strength to negotiate, the main reason to join a union, and so
that the Government could impose to the arbitrator appointed under
this legislation, some of the provisions that supported the employers'
position. The speaker questioned whether, in this case, the
federal Government shared the view of the Ontario Government
that taking away the rights of workers recognized by law was an
appropriate way to establish a balance of power between unions
and employers (Case No. 1985 (federal)).
Lastly, the sixth case also dealt with a back-to-work legislation
introduced against the power workers (Case No. 1999 (Saskatchewan)).
In addition to these cases, the speaker informed the
Committee that, recently, laws taking away the right to strike of
workers in Saskatchewan, Newfoundland and at the federal level
had been introduced.
The speaker concluded that he supported the position taken by
the Worker members. He insisted that the right to strike is part of
the collective strength workers are looking for when joining a union.
Otherwise, he wondered what would be the incentive to form
unions.
The Worker member of the United States expressed his support
for comments made by the Worker members and the Worker member
of Canada. He indicated that he was compelled to comment on
the Canadian case, citing the close trade and investment relationship
between the United States and Canada. He pointed out that
many of the structures of the labour law regimes of the two countries
were very similar, including the system of union certification
based on majority worker authorization in defined bargaining units
and the system of collective bargaining in the private sector. Additionally,
many of the North American trade union structures were
based on trade, craft and industry and were known as internationals,
with affiliates from both Canada and the United States. Despite
these similarities, however, the United States labour movement had
also noted critical differences between the two systems. For example,
the Canadian provinces had included more expedited bargaining
unit representative certification processes, as well as legislation
limiting or prohibiting permanent striker replacement. In his view,
such differences partly explained the higher degree of worker organization
in Canada as opposed to the United States. Therefore,
he expressed deep concern with developments in Canadian labour
law and practice limiting freedom of association rights for Canadian
workers and increasing the possibility of employer interference in
the exercise of the rights of workers to organize, strike and collectively
bargain. Referring to the Committee of Experts' report as
well as to the ICFTVS's Annual survey of labour rights, he noted that
certain job classifications were being excluded from protection under
the labour laws in various Canadian provinces. In Ontario, the
labour legislation excluded agricultural workers, domestic workers,
architects, dentists, land surveyors, lawyers and doctors from legal
guarantees securing workers' rights to organize and bargain collectively.
Other categories of workers excluded were contract service
workers, such as cleaning crews, food service workers and security
guards, in the event of the sale of a business or a change of contractor.
Additionally, amendments to the Ontario legislation prohibited
workers participating in workfare programmes from forming unions,
collectively bargaining or striking, as a condition for receiving
welfare benefits. He indicated that this issue was of particular concern
to workers in the United States, in light of the welfare reforms
in his country. Recent amendments in Ontario labour laws also removed
critical anti-scabbing provisions, which allowed employers
to permanently replace striking workers. Concerning Alberta's labour
legislation, he considered that the report of the Committee of
Experts was self-explanatory in addressing Alberta's unreasonable
definition of essential services. He referred to recent Canadian jurisprudence
which, in finding that Canadian rural letter carriers
were independent contractors and not employees, denied those letter
carriers the legal guarantees of organizing and collective bargaining.
In conclusion, he fully supported the Committee of Experts'
comments and urged the Government to take the necessary
measures to amend its legislation to bring it into full conformity
with the Convention. He underscored that such measures would affect
the welfare of all workers in North America.
The Worker member of South Africa initially emphasized the
importance of the Convention as a full implementation of this Convention
was a key measure of democracy and social justice. Expressing
his support for the statements made by the Worker members,
he noted with deep concern the fact that agricultural and
domestic workers, who were some of the most vulnerable groups of
workers, were excluded from the right to exercise their freedom of
association. He added that Canadian agricultural workers included
a large number of immigrants, who were in particular need of protection.
He further noted that the denial of the right to strike of
certain employees within public hospitals in Alberta stood in complete
contrast with the long-standing practice of the Committee on
Freedom of Association. He finally noted with concern the fact that
teachers in Manitoba were also denied the right to strike. He
strongly urged the federal Government of Canada to ensure that
the pertinent domestic legislation be amended to conform with
Convention No. 87.
The Worker member of Germany supported the statements
made by the Worker members, stating that this case was of fundamental
importance with respect to the principles enshrined in the
Convention. He recalled that the Committee on Freedom of Association
had examined a number of cases in this regard and that it
had always expressed great concern regarding restrictions placed
on the guarantees secured by the Convention. Commenting on the
restrictions imposed on the right to strike by legislation in the Province
of Alberta, he pointed out that the comments of the Committee
of Experts made clear that no restrictions should be placed on
the right to strike. In his view, the Government and the employers
should therefore be asked to explain why categories of workers
such as kitchen staff and gardeners in the health sector had been
deprived of this right. He urged the Government to accept the comments
of the Committee of Experts and take immediate steps to
bring its legislation into conformity with the provisions of the Convention.
Recalling the Employer members' comments on the right
to strike in the general discussion and the references thereto today,
he noted that many of these arguments were of a historical nature
and indicated that the Committee of Experts had adopted an objective
and systematic interpretation. Today, the Worker members
were celebrating the 50th anniversary of Convention No. 98, just as
1998 had marked the 50th anniversary of Convention No. 87. The
case before the Committee, which involved issues concerning freedom
of association, collective bargaining and the right to strike,
clearly demonstrated that these issues were relevant topics even for
industrialized countries. He expressed his hope that Canada would
set a positive example for other countries and immediately implement
the principles enshrined in the Convention, otherwise the impression
could arise that only developing countries were under special
pressure to implement ILO Conventions.
The Government member of Australia noted that while certain
legislation to which the Committee of Experts had referred appeared
not to apply to some categories of workers, the Canadian
Government had made the important point that those categories of
workers remained free to form voluntary associations and to bargain
collectively outside the formal statutory regime. In the Australian
Government's view the Committee of Experts' report on the
application of Convention No. 87 in Canada did not contain sufficient
information that would enable all members of the Conference
Committee to give consideration to the issues raised. A much more
comprehensive exposition of the issues involved would be required
for this Committee to properly consider the matter. He noted that
the Committee of Experts' report necessarily contained no considered
discussion of any information submitted to it by the Canadian
Government and that the Committee of Experts had asked the Canadian
Government to provide further information on some issues.
In this context, rather than this Committee further examining this
matter at this stage, he considered that it would be helpful if the
Canadian Government be given the opportunity to present additional
information to the Committee of Experts.
The Worker member of Finland, speaking on behalf of the
Worker members of the Nordic countries, supported the statements
made by the Worker members and the Worker member of Canada.
He thanked the Government representative for the information
provided. Noting that Canada had ratified the Convention No. 87
but not the Right to Organise and Collective Bargaining Convention,
1949 (No. 98), he expressed interest in the Government representative's
statement during the general discussion to the effect that
23/108
the Government firmly intended to continue the dialogue with the
ILO concerning the possible ratification of Convention No. 98. He
regretted, however, that such a developed and industrialized country
had not been able to comply with the provisions of the Convention,
particularly concerning the right to strike and the right to organize
and negotiate collectively. He asserted that the violations of
the Convention had become a persistent reality in Canada. Noting
that some minor legislative amendments had been made in order to
bring the Canada Labour Code into closer conformity with the
principles of freedom of association, he expressed the hope that the
Government would be able to report further positive developments
in the near future. The Employer members' persistent questioning
of the interpretation of the ILO supervisory bodies concerning the
right to strike was raised with concern, as well as the fact that the
Government also did not seem to accept such interpretation. He
emphasized that the right to strike is a universal right tacitly inferred
from the ILO Constitution and from the interpretation of
Conventions Nos. 87 and 98 by the Committee of Experts and the
Committee on Freedom of Association. The right to strike was recognized
not only as a legitimate, but indeed as an essential means
available to workers to defend their occupational interests. He was
of the view that the interpretations of the ILO supervisory bodies
were validly founded upon Articles 3, 8 and 10 of the Convention.
He pointed out that, pursuant to Article 8 of the Convention, in
exercising the rights under the Convention, the law of the land was
to be respected; however, such laws should not impair the guarantees
provided for in the Convention. With particular reference to
the right to strike of the public sector in the Province of Alberta, he
recalled that while a general ban on strikes was in contradiction
with the Convention, certain restrictions were permitted including
the case of essential services in the strict sense of the term, and public
servants exercising authority in the name of the State. In conclusion,
he asserted that in this context the law and practice in the Canadian
Province of Alberta had not met the requirements set out in
the Convention, as interpreted by the supervisory bodies, and
called on the Government to take responsibility for what was taking
place in the various provinces.
The Worker member of Zimbabwe recalled that the principle of
the right to strike was derived from Article 10 of the Convention,
which provides that worker organizations may act with a view to
furthering and defending the interests of their members. This definition
was of fundamental importance as it defined the purpose of
such organizations. Furthermore, contrary to what the Employer
members seem to believe, essential service workers were defined in
the strict sense of the word in the Digest of decisions and principles
of the Committee on Freedom of Association. Therefore, there
could be no doubt that the kitchen workers, porters and gardeners,
referred to in the Alberta Labour Code amendment, did not fall
into this category of workers, although they worked in hospitals.
Furthermore, the amendment of the New Brunswick Labour Code,
which excluded certain categories of workers from protection, constituted
a direct violation of the Convention. He, therefore, strongly
urged the Government of Canada to take the necessary measures
to amend this legislation in order to bring it into full conformity
with the principle of freedom of association as observed by the
Committee of Experts.
The Worker member of Greece declared that he was stunned by
the length of the discussion which had gone on for two hours and
which concerned the application of a fundamental Convention by
an outstanding country such as Canada. With reference to the observations
made by the Employer members, he noted that although
States were free to choose the measures taken to implement the
Convention, they were still under obligation to ensure compliance
with the Convention. Furthermore, as regards the opposition between
the right to strike and lockout he noted that in his country
lockout had been prohibited since 1982 without any complaints
from the employers. According to the speaker, equality between
workers and employers could not be measured by the level of recognition
of the right to strike or to lockout. One could only talk of
equality once workers had acquired the same level of power as employers.
Finally, he stressed that Canada should take every measure
to ensure that its legislation be brought into conformity with the
Convention in order, at the very least, to avoid the embarrassment
of the present situation as well as the bad publicity arising from it.
The Government member of South Africa stated that his Government
noted with concern the comments by the Committee of
Experts in the case of Canada in relation to the Convention. Some
five years ago his Government had tackled and resolved the very
challenges that the Canadian Government had committed to tackle
almost 27 years ago. The South African Government had also recognized
that domestic and agricultural workers represented the
most vulnerable groups of workers in its society and certainly this
would also be true in the case of Canada. His Government urged
the Canadian Government to bring its legislation and practice into
line with this Convention as soon as possible.
The Government representative thanked all the participants in
the debate for their contributions. He assured that each opinion expressed
as well as the conclusions of the Committee would be transmitted
to the relevant authorities in his country.
The Employer members stated that although they had not
shared all the views expressed in discussion regarding freedom of
association and collective bargaining, there was a general consensus
on the subject and diverging opinions had been expressed only
with respect to certain specific questions. Although a fundamental
discussion on the right to strike should not be reopened, they noted
that the Digest of decisions and principles of the Committee on Freedom
of Association (CPA), which had been cited on various occasions,
was merely a compilation of comments and observations
made by the CFA. In this respect, they considered that the quotation
of the Digest had become a self-generating element in discussions
on the subject. With reference to the statement by a Worker
member of Germany, according to which restrictions on the right to
strike had constituted a restriction of a basic right, they were of the
opinion that the term "basic right" needed to be defined first. In
principle, the Employer members were not against the recognition
of the right to take industrial action which included the right to
strike and the right to lock-out. However, this right did not derive
from the Convention. Recognizing the right to undertake industrial
action, the question concerned the legal basis for the right to strike.
For further details, reflecting the Employers' general position on
the subject, they referred to the 1994 report of the Conference
Committee (paragraphs 115 to 134). In conclusion, they emphasized
that the Convention was not the legal basis for the right to
strike. However, with a view to the divergencies between the Employer
and Worker members' opinions on the subject, the Employer
members emphasized that existing agreements on the Employer
and Worker members' positions regarding most elements of freedom
of association should also be pointed out, since the ILO and its
member States attached great importance to freedom of association.
Moreover, the Government should provide additional information
with regard to measures taken in order to bring the legislation
into conformity with the provisions of the Convention.
With reference to the observations by the Employer members,
the Worker members recalled that all were aware of the differences
of opinion between the two groups as regards the right to strike and,
in particular, whether it should be included in the scope of freedom
of association. Although the Worker members regretted that there
had been no progress in this respect this year, they expressed the
hope that the Employer members would continue to analyse the
situation prevailing in different countries and, in particular, the interpretation
of freedom of association given by these countries and
what it represented and that the dialogue and exchange of views in
this respect should continue within the Committee.
The Committee noted the statement made by the Government
representative and the discussion which took place thereafter. The
Committee noted with interest the information relating to the establishment
of effective procedures for defining "essential workers"
undertaken by the Newfoundland Government through tripartite
consultations. While noting with interest recent legislative
developments relating to the adoption of Bill C-19 amending the
Canada Labour Code, the Committee observed that for a number
of years the Committee of Experts and the Committee on Freedom
of Association had been making comments on a number of issues
relating to the application of the Convention. These issues included
the excessive restrictions on the right of workers' organizations to
formulate their programmes without undue interference from the
public authorities resulting from federal and/or provincial legislation.
The Committee further noted that labour relations legislation
in some Provinces (Alberta, New Brunswick, Ontario) excluded a
number of workers from their coverage, including workers in agriculture
and horticulture or domestic workers, thereby denying
them the protection provided with regard to the right to organize
and to negotiate collectively. The present Committee, like the
Committee of Experts, stressed that the guarantees provided under
the Convention applied to all workers without distinction whatsoever,
and that all workers should enjoy the right to establish and
join organizations of their own choosing to further and defend their
occupational interests. The Committee further stressed that workers'
organizations should enjoy the right to formulate their programmes
without interference from the public authorities. The
Committee expressed the firm hope that the Government would
supply a detailed report to the Committee of Experts on the concrete
measures taken to bring its legislation and practice into full
conformity with the Convention.
23/109
Document No. 260
ILC, 90th Session, 2002, Report of the Committee on the
Application of Standards, pp. 28 Part 2/30-28 Part 2/33
(Swaziland)
Third Item on the Agenda: Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Page
International Labour Conference
Provisional Record PART ONE
Ninetieth Session, Geneva, 2002
28
PART ONE: General Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. General questions relating to international labour standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Reports requested under article 19 of the Constitution — General Survey of the reports concerning
the Dock Work Convention (No. 137) and Recommendation (No. 145), 1973 . . . . . . . . . . . . . . . . . . . 31
D. Compliance with specific obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
PART TWO: Observations and information concerning particular countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Observations and information concerning Reports on Ratified Conventions (Article 22 of the
Constitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. General observations and information concerning certain countries . . . . . . . . . . . . . . . . . . . . . . 1
B. Observations and information on the application of Conventions . . . . . . . . . . . . . . . . . . . . . . . . 4
II. Observations and information concerning the application of Conventions in non-metropolitan
territories (articles 22 and 35 of the Constitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Information concerning certain territories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Appendix I. Table of reports received on ratified Conventions
(articles 22 and 35 of the Constitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Appendix II. Statistical table of reports on ratified Conventions
(article 22 of the Constitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
III. Submission to the competent authorities of the Conventions and Recommendations adopted by
the International Labour Conference (article 19 of the Constitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
IV. Reports on unratified Conventions and on Recommendations (article 19 of the Constitution) . . . . . . 75
Index by countries to observations and information contained in the report . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
28 Part 2/30
Swaziland (ratification: 1978). A Government representative
thanked the ILO for the technical assistance it provided his Government
which had resulted in the adoption of an amended Industrial
Relations Act. He wanted to indicate at the outset that his
Government had also taken steps to initiate social dialogue in the
country, as had been urged by the Committee of Experts.
He recalled that the Committee of Experts had raised two questions
in respect to the application of the Convention, in his country.
The first concerned the right to organize of the prison staff in defence
of their economic and social interests. The second concerned
the dispute resolution procedures which accoring to the Committee
of Experts were too long. The adoption of the amended Industrial
Relations Act incorporating changes under sections 40(13) and 52
as a result of the technical assistance received from the ILO, had
been noted with interest by the Committee of Experts.
In respect of the request of the Committee for the amendment
of the legislation in order to decrease the length of compulsory dispute
settlement procedures provided in sections 85 and 86, read
with sections 70-82, of the Industrial Relations Act, he indicated
that the purpose of the dispute settlement procedure was not to
prohibit strikes, but to permit alternative resolution of the question
before resorting to the ultimate measure of a strike. He recalled
that no law was perfect and that these provisions were not engraved
in stone. He hoped that this Committee, as well as the Committee
of Experts, would appreciate the efforts his Government was making
to conform to the requirements of the Convention. He requested
the Office to assist the Governmen by providing a copy of the
General Survery on Freedom of Association of 1994.
The Employer members stated that this case was a familiar one
that the Committee had been discussing since the mid-1980s and
every year since 1996. They indicated that there were three issues
involved. The first concerned the lengthy procedure and complicated
balloting requirement to hold a peaceful protest. The Committee
of Experts had noted with interest the changes made in the Government’s
laws in both respects and requested reports on the
practical application of section 40 of the Industrial Relations Act.
In paragraph 113 of the General Part of the report, the Committee
of Experts included Swaziland for Convention No. 87 in the list of
cases of progress and this Committee should take note of that fact.
The second issue related to the denial of the right to organize
prison staff. They indicated their agreement with the Committee of
Experts that such prison staff could not legitimately be considered
as part of the armed forces and thus were excluded by the law. The
C. 87
28 Part 2/31
Committee of Experts had also concluded that there could be restrictions
on their right to strike. The Employer members noted this
and indicated that this Committee did not have to deal with this
question in its conclusions.
The third issue concerned the lengthy procedure required before
there could be a legal strike. The Experts provided no procedural
information on the process other than regarding its length.
The Employers’ well-known view meant that these details relating
to the right to strike could not be taken up in the conclusions to
this case. Clearly, there was no one size fits all answer to this question.
Since the last time the Committee discussed this case there had
been some steps forward and the Committee could only be encouraged
by these positive steps and urge the Government to keep them
up.
The Worker members pointed out that Swaziland had ratified
Convention No. 87 24 years ago. Given the serious violations noted
regarding the exercise of the freedom of association, this case had
been discussed by the Committee since 1996. It presented more
specifically a problem regarding the unionization of prison workers.
Despite the adoption of Act No. 8 of 2000, modifying many sections
of the Act on labour relations, the limitations on the freedom of
association and on the right to strike persisted. As such, prison
workers did not enjoy the right to organize, which undermined the
right to strike of this professional body. The adjusting of the Act
regulating trade unions and prison workers was thus necessary, all
the more so since this corporation contained particularities which
required its personnel to be unionized.
The compulsory procedure prior to a strike had been qualified
by the Committee of Experts as a particularly heavy procedure.
This procedure was clearly in contradiction with Article 3 of the
Convention and aimed to discourage all strikes. The probable objective
was to silence trade unions, and in the long run, to make
them disappear. A reduction in the length of the compulsory procedure
prior to a strike thus was indispensable to ensure a better exercise
of the fundamental public liberties that were the freedom of
association and the right to strike. The Government thus had to
proceed with amendments to legislation regarding the right to organize
of prison workers and concerning the settlement of disputes so
as to ensure the observance of the Convention and guarantee the
freedom of expression of prison workers in particular and of trade
unions in general.
The Worker member of Swaziland stated that the correctional
service employees were still denied the right to form and join organizations
of their choice for collective bargaining purposes. The
strike procedure was still too long so that it effectively impeded this
right, as it had been when the Committee had advised the Government
to shorten the period in question. The civil liability clause still
existed and remained a threat and an impediment to workers from
addressing their socio-economic issues by way of protest action. In
short, in the last year, the attempts made by both employers and
workers to amend the law, within the Labour Advisory Board, were
always undermined by the Government.
He recalled that Swaziland was appearing before the Committee
for the seventh consecutive year for continuous violations of freedom
of association, evidencing the obstinacy of the Government.
As in the past, the Government had made a host of promises to the
Committee that it had not kept. Tripartite advice to amend laws was
ignored. On the contrary, the Government had arbitrarily come up
with the 1996 Industrial Relations Act that had criminalized industrial
relations. Having obtained the assistance of the technical team
of the ILO, it failed to amend the Act to render it in conformity with
the Conventions. The Government turned a deaf ear to advice that
was given to it for several years not to use the emergency orders and
decrees against workers and particularly the Public Order of 1963
and section 12 of the 1973 decree. No reports had been made by the
Commission of Inquiry established to look into the death of a 16-
year-old schoolgirl shot by the police during a peaceful demonstration
of the SFTU and into the abduction of the Secretary-General
of the SFTU. Despite the adoption of the Industrial Relations Act
2000 under the pressure of this Committee’s special paragraphs and
the possibility of loss of trade benefits under the United States system
of preferences, several developments took place in the country.
Mass meetings of workers were banned. Workers were detained
and charged for leading peaceful demonstrations and brutalized for
participating in them. They were denied the right to address press
conferences and the right to present petitions. He stated that there
could not be any workers’ right without broader human rights and
civil liberties and that neither could exist nor be sustainable without
freedom of association.
The speaker considered that even though the Industrial Relations
Act 2000 was largely in conformity with the Convention, it was
null and void in the eyes of the authorities because it contradicted
the provisions of the 1973 State of Emergency Decree that was the
supreme law of the country. This view was confirmed by subsequent
developments. The Government passed Decree No. 2 of 2001 that
usurped all fundamental rights and was later repealed due to national
and international outcry. The Government later introduced a
bill to prevent head teachers in schools from joining the teachers’
union. There was also a media council bill designed to muzzle the
media and freedom of expression that was still under consideration.
Before May this year the executive officer of his union was called
and warned not to criticize the Government. Since then, the Government
had published a new Internal Security Bill that proposed
many draconian constraints and restrictions such as the prohibition
of announcements of strikes, and characterizing strikes as economic
sabotage. The improvements of the labour laws were simply reversed
by other statutes. In effect this was like a situation of permanent
state of emergency. Despite Swaziland’s ratification of six of
the eight ILO core Conventions, the African Charter and Peoples’
Right, the African Union Constitutive Act, despite its membership
of the United Nations, OAU and the Commonwealth, it was reverting
to de-humanizing and archaic laws.
With a view to finding a lasting solution, he called for the ILO to
send a tripartite high-level political mission to the country to meet
with the authorities in order to impress upon them the urgency of
amending the laws in question and of respecting the laws in practice.
The Worker member of South Africa stated that the context in
which this case concerning Convention No. 87 was being discussed
was set out in Chapter 2 of the Digest of Decisions of the Committee
on Freedom of Association. It was clearly stated in paragraph 33
of this Digest that the rights conferred upon workers and employers
must be based upon civil liberties enunciated in the Universal Declaration
of Human Rights, and the absence of these liberties removed
all meaning from the concept of trade union rights. In paragraph
34, it was indicated that a system of democracy was
fundamental for the exercise of trade union rights. Swaziland was
far from being a democracy. The 1973 decree, which was still in
force, banned political parties and had suspended the Bill of Rights
contained in the independence Constitution. As a result, trade
unions took up the role of fighting for human and trade union
rights. If progress was said to have been made in labour legislation
without any progress on civil liberties, this constituted no progress
at all. Despite Article 8(2) of the Convention, which states that national
law should not impair guarantees provided for in the Convention,
the Government in Swaziland had been using security laws
to do just that. The Internal Security Bill, which was intended for
terrorists, severely crippled trade union activities and denied freedom
of association.
He recalled that this case had been discussed in this Committee
for several years. The Government had been promising the adoption
of legislation that would be in conformity with the requirements
of the Convention. The Committee had been pressing for the
right to organize of the staff of correctional services, while recognizing
the possible limitation of their right to strike. The Government
had to give justifiable replies to the comments of the Committee of
Experts. The Committee had also requested amendments to the
legislation in respect to the grievance procedure before strikes. As a
result, he considered that the Committee should remain seized of
this case through a special paragraph.
The Worker member of Norway expressed solidarity with the
trade unions of Swaziland and concern at their situation. The Nordic
trade unions had been closely following the political and trade
union situation in Swaziland and the behaviour of the Government
for some time. She supported the proposal that a high-level political
mission be sent to Swaziland as soon as possible to assist the Government
to bring the legislation into compliance with the ILO’s fundamental
Conventions.
The Worker member of Senegal recalled that it was not the first
time that the case of Swaziland had been examined by the Committee.
Even so, the report of the Committee of Experts only reflected
part of the situation. The system was clearly anti trade union and
continued to track down trade union leaders, harassing them with
judicial action for exercising their right to strike. This state of emergency
under which all constitutional freedoms were suspended had
existed since 1973 and was still in force. The only efforts made by
the Government to amend the Act adopted in 2000 had been undertaken
out of a fear of losing trade privileges, especially those relating
to the general system of preferences. In violation of Article 3 of
the Convention, the legislation in Swaziland contained a large number
of restrictions, and particularly the exclusion of prison staff
from a fundamental human right, namely the freedom to establish a
trade union. The Committee of Experts had drawn attention to the
fact that the Government had adopted measures which had removed
the substance of Article 3 of the Convention and which denied
trade union organizations their rights. There was no other way
C. 87
28 Part 2/32
to explain why peaceful protest action had been made subject to
holding a ballot. The repressive powers provided for in Decree
No. 2 had been repealed by Decree No. 3, which had however
maintained the denial of bail for some offences. The current system
attempted to control the SFTU in a more visible manner than in the
past. The lengthy procedures preceding the calling of a strike had
this implicit function. The Government was no longer able to hide
its intention to dismantle trade union organizations. The case of
Swaziland should be set out in a special paragraph of the Committee’s
report.
The Worker member of Japan recalled that, even though the
case had been examined by the Committee on several occasions
and the Government had adopted the recommendations made by
the Committee, the civil liability clause still existed and remained a
threat and impediment for workers to express their opinions without
any restrictions. He emphasized that freedom of association
was based on the right of expression which should be fully secured
by the Government. He emphasized that there could be no trade
union rights without the right to freedom of association, peaceful
assembly and freedom of expression. Referring to the reports of
Amnesty International, he noted that these rights remained restricted
in Swaziland. Government action still threatened the independence
of the judiciary and undermined court rulings, and there
were a number of reports of torture and ill-treatment by the police.
He cited a number of concrete examples and asked the Government
to provide detailed information on these cases to the Committee.
He indicated that Mr. Mario Masuku, President of the People’s
United Democratic Movement, had been arrested once again on
4 October 2001. He had previously been arrested in November
2000 on charges of sedition and had been released under restrictive
bail conditions, including the requirement to obtain the permission
of the Commissioner of Police when he intended to address any
public gathering and to obtain the permission of the High Court to
travel abroad. He had required treatment in the hospital because of
the poor prison conditions. He also cited the deaths of Edison
Makhanya and Sisbusiso Jele, which had occurred within hours of
their arrest by the police on 20 March 2001. These were only examples
of many reports of torture or ill-treatment by the police.
On 19 October 2001, the police had broken up the news conference
organized by members and affiliates of the Swaziland Democratic
Alliance to protest against the detention of the opposition
leader, Mario Masuku. Several journalists had also been harassed
by the police because of their work and a number of publications
had been banned. The Government had also threatened to reintroduce
a Media Council Bill to tighten restrictions on journalists and
publications.
He called upon the Government to give effect in law and practice
to the promises that it had made in this Committee. The duty of
the Government was not to avoid being criticized, but to take direct
steps to build a democratic country in cooperation with the trade
unions. He also hoped that the Government would stop antagonizing
the trade union movement and would accept the ILO tripartite
delegation, which would assist the social partners to engage in dialogue
with a view to finding solutions to the human rights problems
in Swaziland.
The Worker member of Côte d’Ivoire stated that the case of
Swaziland was of prime importance because it dealt with freedom
of association, which was the cornerstone of trade union rights, and
the concomitant right to strike. Freedom of association and the exercise
of the right to strike were inextricably linked, and were
among the fundamental public freedoms that each State had to
guarantee. The situation in Swaziland was symptomatic of that prevailing
in a number of countries, especially in Africa. It was part of
a logic intended to silence trade unions and their claims. But Article
2 of the Convention was clear, and unequivocal. This Article
provided that all occupational sectors, without exception, had the
right to organize. The militarization of some occupational categories
had the sole aim of preventing them from establishing trade
unions and making their claims. The legislation in Swaziland should
therefore be amended to allow prison staff to organize.
With respect to Article 3 of the Convention, the compulsory dispute
settlement procedure provided for in sections 85 and 86, in
relation to sections 70 to 82 of the Industrial Relations Act was outdated
and dangerous for trade unions. It was in direct violation of
the provisions of Article 3 of the Convention and threatened trade
union action by making it difficult, or even impossible to call a
strike These procedures were a violation of freedom and the Convention,
and were an obstacle to trade union action. They should be
withdrawn. Several States had such procedures, which denied the
right of workers to strike, even though this was the only weapon
they could use. Furthermore, heavy sanctions were imposed in the
event of non-observance of these procedures, which further aggravated
the situation. The Committee had been discussing the case of
Swaziland for seven years and should support the position of the
Worker members and of the Worker member of Swaziland.
The Worker member of the United States expressed the solidarity
of AFL-CIO with the workers of Swaziland and its deep concern
about the deteriorating political situation in the country, particularly
with regard to civil liberties, which undermined freedom of association.
He indicated that AFL-CIO intended to renew its efforts to
bring a GSP complaint against the Government of Swaziland because
of the deteriorating political situation.
The Employer member of Swaziland indicated that it was clear
from the discussion with respect to this case that Swaziland was in
dire need of the continuation of social dialogue. The labour reforms
that had occurred in Swaziland with the assistance of the ILO technical
advisory team bore testimony to the power of this process. He
emphasized that the employers had driven such dialogue and some
of the gains that had been achieved were a result of their relentless
efforts to promote dialogue between the social partners. He therefore
called upon the ILO to continue assisting his country to accelerate
the process of social dialogue, particularly at the national level.
He also appealed to the other social partners to renew their
commitment to the process. Finally, he expressed the conviction
that, with the assistance of the ILO in promoting dialogue, his country
would be able to report significant progress in the current year
in addressing its problems.
The Government representative expressed his gratitude to all
speakers for their statements in relation to the case. In view of the
political content of some of these statements, he believed that it was
important to provide some background on the political context in
his country. He indicated that the Government had established a
committee to draft the national Constitution in conformity with international
standards. Referring to the Internal Security Bill, he
emphasized that proposed legislation of this nature was an internal
matter that did not call for discussion by the Committee. He added
that the legislative process in his country allowed for a 30-day period
following the publication of draft legislation in which views on
the proposed texts could be made known.
He emphasized that it was misleading to suggest that his country
was moving backwards. He added that it was important to follow
due process before the ILO’s supervisory bodies. The next step in
the process would be for the Committee of Experts to analyse the
information provided by the Government and to request any further
information that was required. It would then be possible to
consider the progress made. He reaffirmed the commitment of his
Government to taking advice from the supervisory bodies and entering
into discussions with the social partners at the national level
with a view to taking the necessary action. He further emphasized
that statements to the effect that workers were denied their essential
freedoms in Swaziland were untrue. He affirmed that no one
was in prison in Swaziland on account of trade union activities.
Moreover, there had been many applications under the new legislation
to establish new organizations. He reaffirmed the commitment
of his country to conform with its international obligations.
However, he believed that it would be premature in the process of
dialogue with the supervisory bodies to send a high-level mission to
his country at the present time.
The Worker members expressed their gratitude to the Government
representative for his statement and the information provided.
Swaziland had ratified the Convention 24 years ago and the case
had been examined by the Committee on several occasions. Since
1996, the issue of the difficulties of application of the principle of
freedom of association in Swaziland had been examined at every
session of the Committee. Serious violations had been noted, which
still persisted. The Worker members took note of the observation
of the Committee of Experts and the adoption of Act No. 8 amending
sections 29, 40 and 52 of the Industrial Relations Act of 2000.
Restrictions on fundamental public freedoms existed in Swaziland
with respect to freedom of association and the right to strike. In
fact, the prison staff did not have the right to organize. The absolute
nature of this restriction violated Article 2 of the Convention and
severely restricted the right to strike of this occupational category.
Amendments to the law governing the right to organize of this occupational
category were required. The right to organize and the
parallel right to strike needed to be freely exercised by prison staff.
With respect to protest action, it had to be noted that the mandatory
procedure for the settlement of disputes prescribed in sections
85 and 86, read in conjunction with sections 70-82 of the Industrial
Relations Act, was lengthy. The Committee of Experts
referred to this procedure as “particularly lengthy”. Such a procedure
was in violation of Article 3 of the Convention and was intended
to discourage all protest action. The direct consequence was the
silencing of the trade unions, their inability to act and their disappearance
in the long term, which was probably the desired result.
Such regulations were not only unacceptable to the Worker mem-
C. 87
28 Part 2/33
bers on the basis of their convictions and their trade union commitment,
but also in the light of internationally recognized fundamental
human freedoms. This procedure was clearly in violation of the
Convention. A reduction in the length of the compulsory procedure
prior to protest action was required to improve the observance of
the fundamental public freedom of association and the right to
strike.
The legislation governing the right to organize of prison staff
and the dispute settlement procedure had to be changed so as to
comply with the Convention and respect the freedom of expression
of prison staff and trade unions in general. In the event that the
Government did not accept a high-level mission, the Committee’s
conclusions should be set out in a special paragraph of its report.
The Employer members appreciated the expression of good
will and intention by the Government representative. They called
upon the Government to take action to bring national law and
practice into conformity with the Convention. However, if
progress were not made, they warned that the Committee might
have to look at the case differently next year. They also recalled
that the Committee’s discussion of the case needed to be based
closely on the comments made by the Committee of Experts. If
the Committee of Experts were to identify further issues in relation
to this case, it could request additional information. They reminded
the Government that it needed to take action to ensure
that it achieved compliance with the Convention in both law and
practice. A Convention could not just be applied through the
adoption of appropriate laws, but measures also needed to be taken
to ensure its application in practice. They urged the Government
to take seriously any issues identified by the Committee of
Experts in its analysis of the information provided and to follow
the advice given. Although they would normally have considered
a technical advisory mission to be premature at this stage, in view
of the background to the present case they called upon the Government
to give strong consideration to the proposal to send a
technical assistance mission to the country. However, they believed
that it would be premature on this occasion for the Committee
to place its conclusions on this case in a special paragraph
of its report, as suggested by the Worker members.
The Committee noted the statement made by the Government
representative and the discussion which took place thereafter. It
noted with interest the adoption of Act No. 8 of 2000, modifying
sections 29, 40 and 52 of the Industrial Relations Act, 2000, which
appeared to bring the legislation into greater conformity with the
provisions of the Convention while, according to the Committee
of Experts, certain problems with the application of the Convention
remained. It also noted that a certain number of concerns had
been raised during the discussion concerning the practical application
of this legislation and requested the Government to provide
the information requested by the Committee of Experts in
this respect. The Committee further noted with concern the statements
to the effect that a Bill on internal security had been drafted
which would place serious restrictions on the right of workers’ and
employers’ organizations to exercise their activities. It requested
the Government to transmit a copy of this Bill to the Committee
of Experts, and any other relevant information concerning developments
in this respect, so that the Committee could examine the
Bill’s conformity with the provisions of the Convention at its next
meeting. Recalling that respect for civil liberties was essential to
the exercise of trade union rights, the Committee expressed the
firm hope that it would be able to note a significant improvement
in the application of this Convention in the near future, both in
law and in practice. To this end, the Committee once again
suggested that the Government consider the possibility of a highlevel
mission aimed at collecting information on the practical application
of the Convention and contributing to a better implementation
of the Convention.
C. 87
Document No. 261
ILC, 95th Session, 2006, Report of the Committee on the
Application of Standards, pp. 24 Part 2/14–24 Part 2/17
(Zimbabwe)
24 Part 2/1
International Labour Conference
Provisional Record
Ninety-fifth Session, Geneva, 2006
24
PART
TWO
Third item on the agenda: Information and
reports on the application of Conventions
and Recommendations
Report of the Committee on the
Application of Standards
Contents
Page
PART TWO: Observations and information concerning particular countries ................................................. 3
I. Observations and information concerning reports on ratified Conventions
(articles 22 and 35 of the Constitution)............................................................................................ 3
A. Discussion of cases of serious failure by member States to respect their reporting
and other standards-related obligations..................................................................................... 3
a) Failure to supply reports for the past two years or more on the
application of ratified Conventions
b) Failure to supply first reports on the application of ratified Conventions
c) Failure to supply information in reply to comments made by
the Committee of Experts
d) Written information received up to the end of the meeting of
the Committee on the Application of Standards
B. Observations and information on the application of Conventions ............................................ 6
Convention No. 26: Minimum Wage-Fixing Machinery, 1928................................................ 6
– DJIBOUTI
Convention No. 29: Forced Labour, 1930 ................................................................................ 7
– MAYANMAR (see Part Three), UGANDA
Convention No. 87: Freedom of Association and Protection of the Right
to Organise, 1948, ..........................................................................................................9
– BOSNIA AND HERZEGOVINA, BOLIVARIAN REPUBLIC OF VENEZUELA,
ZIMBABWE
Convention No. 87: Freedom of Association and Protection of the Right
to Organise, 1948, and
Convention No. 98: Right to Organize and Collective Bargaining, 1949 ................................ 17
– AUSTRALIA, BELARUS
Convention No. 95: Protection of Wages, 1949 ....................................................................... 26
– CENTRAL AFRICAN REPUBLIC, LIBYAN ARAB JAMAHIRIYA
Convention No. 98: Right to Organize and Collective Bargaining, 1949 ................................ 29
– BANGLADESH, COSTA RICA, GUATEMALA, PAKISTAN, SWITZERLAND
Convention No. 100: Equal Remuneration, 1951 .................................................................... 40
– UNITED KINGDOM
24 Part 2/14
ZIMBABWE (ratification: 2003). The Government communicated
the following written information.
The Government of Zimbabwe has been appearing before the
Conference Committee on Application of Standards since 2002. In the
previous four appearances, Convention No. 98 – Right to Organise
and Collective Bargaining Convention, 1949, was used as the basis of
the listing. This year, Convention No. 87 – Freedom of Association
and the Protection of the Right to Organise, has been used as the basis
of listing the Government of Zimbabwe. In all the previous appearances,
the interventions from the Workers’ group and indeed from the
representatives of the European Union and its associated members
focused on political issues of Zimbabwe which were not linked to the
terms of the appearances. In addition, the conclusions of the Officers
of the Committee were in all instances biased hence the contestation
and rejection by the Government of Zimbabwe of the suggested direct
contacts mission in 2005.
The Government of Zimbabwe is of the view that unless the
International Labour Conference’s Committee on Application of
Standards’ working methods are urgently revised, it runs the risk of
gradually being transformed into a political platform for castigating
and ridiculing developing countries which are perceived otherwise by
the West. In the case of Zimbabwe, its former colonial power has,
since 2000, internationalized the political differences between the two
countries over the land issue. Workers’ organizations, mainly from
Europe, being coordinated by the International Confederation of Free
Trade Unions (ICFTU) are working in cahoots with individuals in the
Zimbabwe Congress of Trade Unions (ZCTU) who have an appetite
for donor money to advance the political agenda of Zimbabwe’s former
colonial power at every session of the International Labour
Conference (ILC) as well as in Zimbabwe.
The listing of Zimbabwe at this session of the ILC is premised on
Convention No. 87 – Freedom of Association and the Protection of the
Right to Organise. In the report of the Committee of Experts on the
Application of Conventions and Recommendations on page 132, reference
is made to individual cases which fall within the purview of the
Committee on Freedom of Association (CFA). These cases were ably
responded to by the Government and some were finalized by the CFA.
In addition, the Public Order and Security Act (POSA) was cited. It is
interesting to note that the majority of the cases cited on page 132 are
the same cases which the Workers’ group, ZCTU included, were making
reference to during the previous appearances. These cases were
dismissed by the Government as either unfounded or of a political
nature. Some of the incidences covered in the cases are still to be finalized
by the CFA due to lack of adequate information and in some
instances, unconvincing arguments on the part of the complainant, in
this case, ICFTU. The Committee of Experts noted that POSA does
not apply to trade union activities or public gatherings which are not
political. Surprisingly, it remains concerned that POSA “may be used
in practice so as to impose sanctions on Trade Unionists for conducting
a strike, protest, demonstration or other public gathering”.
The Committee of Experts’ fears are unfounded and it is unfortunate
that its position was influenced by the incidences cited in Cases
Nos. 2313 and 2365 which were examined by the CFA. As responded
to by the Government, the cited incidences did not relate to trade
union activities but rather political matters. It is common knowledge
that certain individuals within the ZCTU are political and work in
cahoots with the Movement for Democratic Change (MDC), the
National Constitutional Assembly (a quasi-political organization) and
the Crisis Coalition of Non-Governmental Organizations led by the
current Secretary-General of the ZCTU. Their agenda is to topple the
democratically elected Government of Zimbabwe at the instigation of
the foreign powers which want a regime change in Zimbabwe. POSA
is about protecting the sovereignty of Zimbabwe and its citizens. It has
nothing to do with trade union activities pursued by an insignificant
percentage of the population. Accordingly, POSA will remain intact
notwithstanding the outcry which is associated with the trade union
organizations with political inclinations. Legislation, similar to POSA,
exists in several countries whose governments are mindful of their
duties to protect their citizens against internal or external elements
which are motivated to bring about disorder. Genuine trade unionists
in Zimbabwe have no problems with POSA and no reasons to fear it
as it does not apply to its meetings. It is only those who are promoting
a foreign political agenda of regime change that are against POSA.
POSA is not at cross-purpose with the Labour Act (28:01) which governs
industrial relations in Zimbabwe.
In addition, before the Committee, a Government representative
(Minister of Public Service, Labour and Social Welfare) recalled that
the Conference Committee had discussed the application by his country
of Convention No. 98 in four consecutive sessions between 2002
and 2005 and that the only difference this year was Zimbabwe’s listing
for discussion on the application of Convention No. 87. In his
Government’s view, the interventions in previous sessions had not
focused on the issues arising from the application of Convention No.
98 and had shifted to a political discourse. Hence there was the perception
by the Non-Aligned Movement (NAM) member States, especially
the Africa group, that Zimbabwe’s appearance on the case list
was politically motivated. He urged the Committee to focus on matters
falling within its competence and leave aside issues of a political
nature. Turning to the comments of the Committee of Experts, the
speaker stated that individual cases of workers dismissed taken up by
the Committee of Experts and the Committee on Freedom of
Association were trivial and political in nature. He questioned whether
the Committee would really wish to examine workplace disputes,
ordinarily handled by national dispute settlement machineries.
Regarding the Public Order and Security Act (POSA), the speaker
assured the Committee that the relevant Act was never meant to interfere
with trade union activities. Instead, the POSA had been enacted
with a view to dealing with the problem of terrorism and protecting
Zimbabwe’s sovereignty, order and peace. He recalled that POSA had
C. 87
24 Part 2/15
been adopted on the behest of governments who had urged his country
to toughen its laws after the terrorist attacks of 2001. Issues pertaining
to trade union activities were dealt with by the Labour Act,
which was in full conformity with the requirements of Convention No.
87.
The Employer members recalled that the Conference Committee
had discussed the application by Zimbabwe of Convention No. 98 on
a number of occasions. They acknowledged that some progress had
been made but pointed out that important issues had still to be
resolved. Since it was the first time that the Committee discussed the
case of Zimbabwe under Convention No. 87, it was important for the
Government to understand what its obligations were under both
Convention No. 87 and Convention No. 98. A key aspect of
Convention No. 87 concerned the interdependence of civil liberties
and trade union rights. According to the ILO supervisory bodies,
restrictions on civil and political activities constituted serious inhibitions
of freedom of association. Free and independent trade unions
could only develop in an environment of freedom and respect of civil
and political rights. In this context, the speaker made a reference to the
case of Nicaragua, which was of major importance for the Employer
members. Although they understood the Government’s wish to separate
the political issues from those arising under Convention No. 87,
they maintained that the two were inseparable. The provisions of
Convention No. 87 presupposed the right to freedom and security of
person, the right to freedom of movement, the right to freedom of
opinion and expression, as well as the right to freedom of assembly
and association. This meant that trade union activities could not be
restricted solely to trade union matters, since they were intertwined
with political questions.
The Worker members expressed their regret about the fact that in
its reply the Government had hardly touched on the concerns voiced
by the Committee of Experts but had rather confined itself to general
comments which had not responded to the latter’s requests. In their
view, there was no doubt that the Government of Zimbabwe engaged
in gross and flagrant violations of fundamental human rights, including
the right to freedom of association, despite the fact that it had ratified
and hence undertaken to abide by the ILO Conventions on freedom
of association. They stressed that Zimbabwe was not being discussed
for a consecutive sixth year because of its land reform policy,
its international status or geographical size, but merely because of its
flagrant disregard of Convention No. 87. The Worker members drew
the Committee’s attention to the fact that the Government had often
relied on the provisions of the POSA for the purpose of imposing a ban
on gatherings, demonstrations and strikes and harassing trade union
leaders. In support of their submissions, the Worker members presented
to the Committee a number of refusals by the authorities to carry
out public meetings and demonstrations. In one case where the request
to commemorate women’s day was granted, the restrictions imposed
by the authorities included the prohibition of singing or shouting slogans,
of explicitly or implicitly raising or discussing political issues,
and a strict timetable for the event and the monitoring by security
forces. In this context, the Worker members invited the Government to
acknowledge the importance of the resolution adopted by the
International Labour Conference in 1970, according to which “the
rights conferred upon workers’ and employers’ organizations must be
based on respect for those civil liberties which have been enunciated,
in particular in the Universal Declaration of Human Rights and in the
International Covenant on Civil and Political Rights, and that the
absence of these civil liberties removes all meaning from the concept
of trade union rights”.
The Worker members also referred to the cases pending before
the Committee on Freedom of Association as evidence of Zimbabwe’s
disrespect of trade union rights. They pointed to instances of arbitrary
arrest and injury of trade unionists and trade union leaders (Case No.
2313), dismissal and deportation of South African trade unionists for
participation in strike action (Case No. 2365), anti-trade union dismissal
of the recently re-elected president of the Zimbabwean
Congress of Trade Unions (ZCTU), Mr. Lovemore Matombo, and the
withholding of owed payment (Case No. 2328), police raiding the
headquarters of the ZCTU (Case No. 2184) and manhandling of its
recently elected Secretary-General, Wellington Chibebe (Case No.
2238). In closing, the Worker members also brought to the attention of
the Conference the recent case of deportation of foreign trade unionists
who were invited to participate in the congress of the ZCTU.
The Government member of Cuba stated that Zimbabwe had
been placed on the list of countries called upon to provide explanations
to the Committee, and on each occasion the Government had
provided explanations that were easily understood by all. In particular,
when perusing the report of the Committee of Experts, it could be seen
that this was a case relating to the application of the national legislation
of a State, which was merely an internal matter of a sovereign
State. Therefore, the Government of Zimbabwe should be trusted to
give proper effect to the POSA without violating its international commitments
deriving from Convention No. 87, particularly as the
Government had guaranteed that the Act did not apply to trade union
activities or public assemblies which were not of a political nature, as
indicated in document D.12. For this reason it was necessary to be
careful when noting the present case, in which an attempt was being
made to relate the internal situation of a country to compliance with
international labour standards, which was tantamount to taking a position
on a subject that was not within the mandate of the Committee.
What should be done was to offer ILO technical assistance and cooperation.
The Government member of Austria took the floor on behalf of
the Governments of the Member States of the European Union; the
Acceding Countries Bulgaria and Romania, the Candidate Countries
Turkey, Croatia, and the Former Yugoslav Republic of Macedonia, the
Country of the Stabilisation and Association Process and potential
candidate Bosnia and Herzegovina, as well as the EFTA countries
Iceland and Norway, members of the European Economic Area,
aligned themselves with this declaration. He stated that, in the light of
the Government’s reply to the observations of the Committee of
Experts contained in document D.12, a reaction was warranted. He
strongly rejected Zimbabwe’s assertion that the comments made by
European Union Members States in earlier sessions of the Conference
Committee on the country’s obligations under Convention No. 98
focused on political issues, not directly linked to the question falling
within the Committee’s mandate. Social and labour standards were
inseparable from human rights issues and by their very nature “political”.
It was therefore absolutely legitimate for the members of the
Conference Committee to refer to the human rights situation in a given
country in general when examining its compliance with the labour
standards under scrutiny. In the opinion of the European Union, the
language employed by the Government in document D.12 was
polemic, even insulting and detrimental to the authority and work of
the ILO supervisory system and called for its further strengthening.
The speaker noted however that the oral presentation by the
Government representative was more moderate in its tone than in document
D.12. Turning to the application by Zimbabwe of Convention
No. 87, the European Union Member States endorsed the concerns
expressed by the Committee of Experts concerning the implications
for the freedom of assembly of the POSA, which provided for the prohibition
of trade union public meetings and gatherings that were
deemed not to be for “bona fide purposes”, without at the same time
stipulating specific criteria for the determination of what constituted
“bona fide purposes”, thus opening the door for arbitrary decisions.
They emphasized that workers’ organizations should be free to voice
their opinions on political issues in the broad sense of the term and to
express their views publicly on a government’s economic and social
policies. They endorsed the requests made by the Committee of
Experts in relation to Zimbabwe’s application of Convention No. 87.
The Government member of Canada expressed his delegation’s
concern that the Government used the POSA to deny the rights of
trade unionists to conduct a strike, protest, demonstration or other
public gathering. In addition, the Canadian Government had protested
against the arrest and detention of leaders and members of the ZCTU
and had made representations for the respect of the right of freedom of
expression and assembly and freedom of association. In particular,
Canada had called on the Government of Zimbabwe to refrain from
violence or undue force against peaceful protestors. Moreover, it was
disturbing to note the frequent prevention of international labour
union representatives from entering the country to meet with national
trade unions and the Government should facilitate international
exchanges between labour union representatives. The speaker mentioned
his country’s support for the labour movement in Zimbabwe,
including research on the informal economy. He concluded by encouraging
the Tripartite Negotiation Forum talks between the Government,
business and the ZCTU that resumed last year.
The Government member of Nigeria, speaking on behalf of the
Africa group, stated that the request of the Africa group for regional
balance in the representation of countries in the selection of cases, formulated
in 2005, had been acknowledged. Turning to the case under
discussion, the speaker recalled that in its report, the Committee of
Experts had stated that section 24 of the POSA, which had been criticized
for conferring to the authorities a discretionary power to prohibit
public gatherings, did not apply to gatherings of members of professional,
vocational or occupational bodies held for non-political purposes
or bona fide trade union purposes. The Africa group appreciated
the concerns of the Committee of Experts, but since this particular
issue was currently pending before the Committee on Freedom of
Association under Cases Nos. 2313 and 2365, the Conference
Committee should not have taken up the same issue before the former
body was given sufficient time to conclude its examination. The
Africa group believed that the simultaneous examination of the case
by two supervisory bodies was counter-productive, putting the country
in a position of feeling haunted and harassed. Turning to the question
of the manner in which trade unions should articulate their
demands, the speaker supported the idea of a practice that favoured tripartism
and social dialogue instead of the threatening and antagonizing
practices of holding protests, demonstrations and strikes. She
referred to the experience of her country, which, in an effort to overcome
similar problems, had discovered the value of social dialogue.
African trade unionists should learn from this experience that workers’
rights were best safeguarded through negotiation. She called upon
the Committee to drop the case from the list of individual cases and
invited the Office to strengthen the capacity of the social partners so
that they would engage in meaningful social dialogue.
The Government member of Namibia stated that the
C. 87
24 Part 2/16
Government of Zimbabwe had fully addressed the requests by the
Committee of Experts. With respect to the POSA, its response had
clearly shown that it did not limit or ban trade union activities. Noting
his surprise at the inclusion of this case on the conference list, he
called for more clarity and transparency in the methods in determining
the list of individual cases, and for the discussions to avoid focusing
on political issues.
The Government member of Kenya stated that the Government
of Zimbabwe had responded to the issues raised, and pointed out that
the situation in Zimbabwe was a particular mix of national and international
politics. Given the close relationship between the ZCTU and
the Movement for Democratic Change, the supervisory bodies should
apply the principles of fairness and honesty and set aside cases where
trade union activities were flavoured with politics.
The Government member of South Africa stated that this case
was very general and lacked specific charges. He appealed to the
Committee to separate political issues from trade union matters, since
part of the problem was a trade union in Zimbabwe that was pursuing
a political agenda. He also called on the Committee to grant its confidence
to the Government of Zimbabwe in order to pursue the application
of Convention No. 87 without the feeling of being harassed.
The Worker member of Zimbabwe stated that during the last five
years the ZCTU had been harassed by the police and other security
agencies, and in all cases of arrest the detained had been charged
under the POSA, despite the fact that section 24 of the Act explicitly
stated that trade unions were exempted from applying for permission
to hold trade union meetings or processions. For the last five years the
courts had ruled that the trade unions were innocent but the uniformed
police continued to harass them. In order to be able to freely assemble
for trade union activities, special permission was needed from the
police, which very often was denied. He further expressed concern
about the ruling of the Supreme Court that had overturned the legality
of a strike for the very first time. Furthermore, during the 6th
Congress held by the ZCTU, some of the invited guests were deported.
The speaker pointed out that reforms regarding the prison services
had not taken place, despite a Government majority in the parliament,
and that civil servants remained without a collective bargaining framework.
He concluded by stating that the situation in his country was
confirmed in the observations of the Committee of Experts and that
industrial relations and dispute settlement were now treated under
POSA.
The Worker member of Germany stated that she was speaking as
the Workers’ spokesperson in the Committee on Freedom of
Association. Whatever was discussed in the Committee on Freedom of
Association with regard to specific cases was of utmost importance to
the work of the present Committee.
The Government member of Nigeria raised a point of order
claiming that the findings of the Committee on Freedom of
Association were not the subject of discussion before the present
Committee.
The Chairperson ruled on the point of order, that any kind of
illustrative information was admissible before the Committee and
requested the Worker member of Germany to restrict herself to providing
such information.
The Worker member of Germany stated that the Committee on
Freedom of Association had had to deal with the case of Zimbabwe
only two weeks ago. Case No. 2365 concerned several trade union
leaders who were in jail since 2004 without indication of reasons; with
the dismissal of 56 workers of the Netone factory, who had participated
in a strike because management had left the bargaining table; and
the expulsion from Zimbabwe of a trade union delegation from South
Africa. The case had been dealt with in the Committee for the third
time. Since the Government had not yet answered the Committee’s
questions from June last year, two weeks ago the Committee had to
deal with the Case without any reports from the Government. The case
touched upon one of the most basic trade union rights concerning the
defence of their economic and social rights – the right to strike.
In the case of the strike at the state telecommunications enterprise,
Zimpost and TelOne, management had not paid the wage increases, to
which it had been sentenced by a court of law. Management decided
unilaterally to pay less than half of the wage increases decided by the
court. The workers from TelOne approached the Minister in charge
and the State Secretary, Karkoga Kasela, instructed management to
find an out-of-court solution. Upon the management’s refusal, the
workers announced a strike, which began two weeks later, on 6
October 2004. On 12 October, some 25,000 workers (half of the workers
of the post and telecommunications sector) joined the strike. On 21
October, the Government set up armed sentries in the major post and
telecommunications offices throughout the country. The guards were
used to intimidate the striking workers and local trade union leaders.
One day before the beginning of this massive strike, the trade union
leader Sikosana was arrested in Bulawayo, six further trade unionists
were arrested in Gweru and only released after payment of a penalty.
The speaker pointed out that the Committee on Freedom of
Association had found that the arrest of trade unionists in this context,
even briefly, was a fundamental violation of the right to freedom of
association. The arrest of trade unionists in connection with their trade
union activities related to the representation of their members constituted
a serious interference into civil rights in general and in trade
union rights. The present Government had only ratified Convention
No. 87 in 2003. The question arose why the Government was not prepared
to implement Convention No. 87.
Law and practice were, unfortunately, further than ever from being
in accord with Convention No. 87. The Government should do all to
implement the Convention, so that the workers of Zimbabwe and trade
unionists could exercise their right of association without fear of
repressive measures. She hoped that the Government would also be
prepared to accept the offer of a direct contacts mission. This would
be an important sign that the Government was prepared to cooperate
with the ILO in the observance of Convention No. 87.
The Worker member of Brazil stated that the flagrant contradiction
arising in the case of Zimbabwe was not between workers and the
Government, but between a government of a poor and exploited
African country and certain weighty superpowers which wished to
continue to dominate and control the wealth of the planet. It exemplified
the contrast between justice and injustice. For four consecutive
years, the pretext for sanctioning Zimbabwe had been Convention No.
98. As had occurred the previous year, the report of the Committee of
Experts clearly showed that there was no technical justification for
Zimbabwe to appear on the list of the Conference Committee,
although the pretext had changed, as the case now related to
Convention No. 87. In reality, it was just a matter of finding a pretext
to attempt to impose sanctions on Zimbabwe, which amounted to
political interference that was totally beyond the principles of the ILO.
She emphasized that the ILO could not let itself be taken over by the
racial hatred of those who had upheld apartheid for centuries and who
wished to continue dominating the land and wealth that belonged to
the people of Zimbabwe. If it adopted this type of discrimination
towards developing countries which were seeking to follow their own
path, without respecting multilateral principles, the ILO would run the
risk of becoming a political tool of the major powers which wished to
impose their domination.
The Worker member of Nigeria stressed the solidarity between
workers in different countries and between States. If his own and other
African governments could live with strikes, they should encourage
their sister government in Zimbabwe to do the same in the true spirit
of sharing experiences. The speaker pointed out that the only job creation
in Zimbabwe occurred in the informal sector and attempts by the
ZCTU to organize them had been seriously hampered by the
Government. This issue being at the heart of Convention No. 87, he
called on the Government to stop interfering with the freedom of association,
which was also detrimental to the prospect of social dialogue,
and he asked the Government to fully respect the Convention and to
engage in genuine social dialogue with the ZCTU.
The Worker member of Malaysia expressed his serious concern
over the magnitude of the violations of Convention No. 87 and
recalled that international trade union cooperation and solidarity were
fundamental elements of the Convention. He recalled union-related
workshops that had been broken up by the authorities. In this respect,
he denounced the Government’s deportation of international trade
union delegations, including the General Secretary of COSATU, and
urged the Government to immediately stop the repression of its own
citizens and its interference against international trade union solidarity,
to which the speaker himself had been exposed. He condemned the
Government for its lack of respect for workers’ rights and Convention
No. 87.
The Worker member of South Africa noted that in most of
Zimbabwe’s neighbouring countries there was the freedom of association
and the right to demonstrate. In her country, workers “toy-toyed”
against everything they were unhappy about, a right enjoyed in most
Southern African Development Community countries. She disagreed
with the position of some government members that this case was a
conspiracy by developed countries against Zimbabwe. This case was
an unambiguous case of violation of Convention No. 87 and all countries
should take a strong stand so that one day the workers in
Zimbabwe could be free.
The Employer member of Zimbabwe stated that for the very first
time the Government had instigated discussions with the social partners
to bring about a turnaround in the economy. In his opinion, the
present case stemmed from the Government’s efforts to achieve
macroeconomic stability. The Government had appeared several times
before this Committee in connection with Convention No. 98 and this
had resulted in certain steps to amend labour legislation, for which all
social partners had to be complimented. However, the employers in
Zimbabwe found the issues under discussion in this case too broad and
distant from labour legislation. For example, the reference made to the
POSA was connected to political issues. In addition, some cases
referred to by the Committee of Experts dated back to 1997 while others
were still pending either before the Committee on Freedom of
Association or other authorities. The Zimbabwean employers did not
feel comfortable to comment upon these pending cases. The speaker
expressed his hope for stronger social dialogue which appeared to be
developing through the tripartite Negotiating Forum and the National
Economic Revival Council. He welcomed continued technical assistance
from the ILO to facilitate the creation of an environment for
business and investment to prosper and to create more wealth and
employment.
The Government representative, in response to a comment by
C. 87
24 Part 2/17
the Worker member of Germany, indicated that no trade union leader
had been imprisoned since 2004. He stated that while there existed the
right to make a procession, the Government had also to protect private
property and the rights of other persons. For this reason, the police in
Zimbabwe prescribed conditions on ZCTU demonstrations, which
were often violent. He stressed the efforts that had been made to
address labour issues through last year’s meeting with the social partners.
It was hoped this dialogue would lead to the adoption of a protocol
for the stabilization of income and prices. Regarding the postal
workers who were dismissed, the speaker pointed out that the courts
had upheld these dismissals, and this was the rule of law. This did not
prevent a discussion of certain administrative matters for helping dismissed
workers in this case, and the Government was willing to pursue
such discussions. No specific fault could be found with
Zimbabwean labour law, and even the ZCTU had hailed the Labour
Act as progressive. The speaker maintained that, in his country, certain
trade unions were agitating for the destabilization of the country
and had an open political agenda. For example, permission had been
given for a commemoration of occupational safety and health week, at
which a senior official from his Ministry was to speak. Yet, the attendees
all sported political T-shirts and caps, which was inappropriate
for a trade union event. Demonstrations of this nature occurred as his
delegation was about to depart for Geneva to attend the International
Labour Conference, and the demonstrators hoped to gain international
attention. As for the expulsion of foreign trade unionists from
Zimbabwe, he pointed out that all countries had immigration laws
which allowed sovereign States to determine who could enter their
country. He concluded by stating that this was a politically motivated
case. He hoped the issues in this case could be addressed through
social dialogue and he welcomed any usual technical assistance from
the ILO.
The Employer members expressed their appreciation for the reasoned
tone in which the Government had addressed the issues in the
present session. It was evident from the discussion that the
Government did not understand the difference between protection of
trade union rights by the Committee on Freedom of Association, the
obligations under Convention No. 87, or the difference between
Conventions Nos. 87 and 98. They recalled that the ratification of
Convention No. 87 required law and practice to be brought into line
with the Convention, including the protection of the civil liberties of
workers’ or employers’ organizations. While the Government had
engaged in social dialogue, this was not the same thing as freedom of
association. Social dialogue was a means, however, through which the
Government could solve the problem, with ILO technical assistance.
They hoped the Government would accept technical assistance in this
case.
The Worker members expressed their regret about the fact that a
large number of African governments had supported the Government
of Zimbabwe in its defiance of Convention No. 87. They declared they
would not be intimidated and were resolved to continue their quest for
the recognition of their inalienable fundamental freedoms, as
enshrined in the African Charter of Human and People’s Rights,
which, in their view, was flagrantly betrayed by those members of the
Committee that supported the Government of Zimbabwe. They also
disassociated themselves from the Worker member of Brazil, whose
assertions did not represent the trade union movement. The Worker
members asserted their right to address all issues arising under
Convention No. 87, explaining that these were directly linked to their
ability to find work and ensure adequate working conditions. They
recalled that in August 2001 three workers of the government-owned
ZISCO Steel Company were shot dead during a strike calling for better
working conditions and pay. Despite their repeated calls to
President Mugabe to order an investigation into the deaths, no inquiry
had been carried out up to the present day. The Worker members further
condemned the Government for systematically “politicizing” all
socio-economic issues legitimately raised by the ZCTU as well as for
its systematic and abusive attacks on the ICFTU whenever it raised
issues of fundamental rights. In their opinion, it would be an abdication
of duty if the collective voice of labour remained silent in the face
of violations. Every country had security laws, but not every country
used these laws against legitimate trade union rights. They expressed
the hope that the support demonstrated by the African countries for the
Government of Zimbabwe was merely an act of public relations or
diplomatic solidarity and that behind the scenes the same countries
would encourage the Government to comply with the standards set out
in Convention No. 87.
The Government representative stated that his Government had
never turned down technical assistance from the ILO. It would not,
however, accept a direct contacts mission. It would accept a strengthening
of the Subregional Office in Harare.
Following a pause prior to the adoption of the conclusion, the
Workers members wished to draw the Committee’s attention to the
unacceptable attitude of the Zimbabwean Government delegation –
they had committed some intolerable verbal and physical aggression
on certain Worker delegates and ILO staff. The Worker members
demanded the Government’s excuses for this behaviour, otherwise
they would request the incident to be reflected in the Provisional
Record.
Another Government representative stated that he was not
familiar with any “incident” and he had no intention of apologizing to
a purely vacuous intervention by the Workers.
The Committee noted the information provided by the
Government representative and the debate that followed.
The Committee observed that the comments of the Committee
of Experts referred to the use of the Public Order and Security Act
(POSA) in the arrest of, and the placing of charges against, trade
unionists and union officers by reason of their trade union activities,
as well as the discretionary power granted to authorities to
prohibit public meetings and to impose fines or imprisonment in
case of violations of any such prohibitions. The Committee also
noted that the Committee on Freedom of Association examined
several complaints against the Government regarding these serious
issues.
The Committee noted in the Government’s statement that the
cases of the Committee on Freedom of Association that had been
referred to by the Committee of Experts were not new and concerned
small and trivial matters and that they had not been raised
by the social partners with the Government. It further noted in the
Government’s statement that the POSA did not apply to the exercise
of legitimate trade union activities. Trade union meetings that
did not have a political purpose could take place without interference.
The Committee also noted with concern, however, the information
provided concerning the situation of trade unions in
Zimbabwe, the abusive use of the POSA to ban public demonstrations
and the barring of entry into the country of certain international
trade unionists.
The Committee requested the Government to take measures to
ensure that the POSA was not used to impede the right of workers’
organizations to exercise their activities, or to hold meetings
and public protests relating to government economic and social
policy. The Committee emphasized that the exercise of trade union
rights was intrinsically linked to the assurance of full guarantees
of basic civil liberties, including the rights to express opinions
freely, and to hold assemblies and public meetings. Like the
Committee of Experts, the Committee recalled that the development
of the trade union movement and the acceptance of its everincreasing
recognition as a social partner in its own right meant
that workers’ organizations must be able to express their opinions
on political issues in the broad sense of the term and, in particular,
that they may publicly express their views on the
Government’s economic and social policy. The Committee insisted
that no trade unionist should be arrested or charged for legitimate
trade union activities. The Committee requested the Government
to consider accepting a high-level technical assistance mission
from the Office aimed at ensuring the full respect for freedom of
association and basic civil liberties not only in law, but also in
practice. The Committee expressed the firm hope that, in the very
near future, it would be in a position to note concrete progress as
regards observance of the rights embodied in the Convention and
requested the Government to send a detailed report thereon in
time for the next meeting of the Committee of Experts.
The Government representative refused to accept the conclusions
in their present form. He reiterated that the high-level technical
assistance mission emanating from the Conference Committee was
not acceptable, rather the Government was willing to accept the usual
technical cooperation. He further pointed out that his delegation was
aware of the difference between a high-level technical assistance mission
directed by the Committee and the usual technical assistance.
The Employer members affirmed that the Minister had accepted
to receive enhanced technical assistance.
The Worker members concurred with the statement of the
Employer members. Technical assistance had been accepted several
times during the Committee’s present session. The envisaged highlevel
technical cooperation would be carried out by the Office, and not
by this Committee. They, therefore, felt that the conclusions were not
out of context.
C. 87-98
Document No. 262
ILC, 97th Session, 2008, Report of the Committee on the
Application of Standards, pp. 19 Part II/63-19 Part II/67
(Zimbabwe)
19 Part II/1
International Labour Conference
Record of Proceedings 19
97th Session, Geneva, 2008 PART TWO
PART TWO
THIRD ITEM ON THE AGENDA: INFORMATION AND REPORTS
ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS
Report of the Committee on the Application of Standards
Contents
Page
PART TWO: Observations and information concerning particular countries ............................................................ 5
I. Observations and information concerning reports on ratified Conventions
(articles 22 and 35 of the Constitution)........................................................................................................ 5
A. Discussion of cases of serious failure by member States to respect their reporting and other
standards-related obligations................................................................................................................ 5
(a) Failure to supply reports for the past two years or more on the application of
ratified Conventions ...................................................................................................................... 5
(b) Failure to supply first reports on the application of ratified Conventions ..................................... 6
(c) Failure to supply information in reply to comments made by the Committee of Experts ............. 6
(d) Written information received up to the end of the meeting of the Committee on the
Application of Standards ............................................................................................................... 8
B. Observations and information on the application of Conventions ....................................................... 10
Convention No. 29: Forced Labour, 1930 ........................................................................................................... 10
INDIA (ratification: 1954) .............................................................................................................. 10
MYANMAR (ratification: 1955)...................................................................................................... 14
PARAGUAY (ratification: 1967) ..................................................................................................... 14
SUDAN (ratification: 1957) ............................................................................................................ 17
Convention No. 81: Labour Inspection, 1947 ..................................................................................................... 21
SWEDEN (ratification: 1949) ......................................................................................................... 21
UGANDA (ratification: 1963) ......................................................................................................... 23
Convention No. 87: Freedom of Association and Protection of the Right to Organise, 1948.......................... 26
BANGLADESH (ratification: 1972)................................................................................................. 26
BELARUS (ratification: 1956) ........................................................................................................ 31
BULGARIA (ratification: 1959) ...................................................................................................... 37
COLOMBIA (ratification 1976) ...................................................................................................... 39
EGYPT (ratification: 1957) ............................................................................................................ 50
EQUATORIAL GUINEA (ratification: 2001) ................................................................................... 55
GUATEMALA (ratification: 1952) .................................................................................................. 55
JAPAN (ratification: 1965) ............................................................................................................. 60
ZIMBABWE (ratification: 2003) ..................................................................................................... 63
19 Part II/63
ZIMBABWE (ratification: 2003)
The Chairperson of the Committee invited the Government
representatives to participate in the discussion. In
addition, to confirm the absence of the delegation of Zimbabwe,
which had been duly accredited and registered
before the Conference, she referred to the working methods
of the Committee. The refusal of a government to
participate in the work of the Committee represented a
considerable obstacle to the achievement of the main objectives
of the International Labour Organization. For this
reason, the Committee could discuss the substance of
those cases regarding governments registered and present
at the Conference who decided not to appear before the
Committee. The discussion regarding such cases would be
reflected in the appropriate part of the report, concerning
both individual cases and the participation in the work of
the Committee.
The Worker members indicated that the Government of
Zimbabwe had embarked in a systematic and malicious
spate of activities in violation of the Convention, including
arrests, detentions, brutality and harassment of trade
union leaders, activists and human rights defenders. Under
the same government administration, Zimbabwe had
once been a democracy and a food basket for the southern
African region, with a strong currency, but had since allowed
itself to degenerate into a despotic State that had let
its economy run into the abyss through bad governance.
The Government’s flagrant disregard for the Zimbabwean
people manifested itself by discretionary denial of
civil liberties through the constant use of the Criminal
Law (Codification and Reform) Act of 2006 and the Public
Order and Security Act (POSA) to regulate trade union
activities. The Worker members reported that, regrettably,
Mr Wellington Chibebe had been arrested for the second
time, together with Mr Lovemore Matombo, the President
of the Zimbabwe Congress of Trade Unions (ZCTU).
They had been incarcerated in remand centres for 12 days
and were currently out on bail. A request of the subregional
ILO representative to visit them had been rejected.
Both ZCTU members and ordinary workers had become
victims of torture, arrests, victimization and displacement.
In the rural areas, many teachers had been victimized and
19 Part II/64
brutally beaten in front of their pupils; 67 teachers had to
be hospitalized, and Mr Raymond Mazongwe had been
arrested and later released.
The Government should be reminded of the Resolution
concerning trade union rights, adopted by the Conference
in 1970, which pointed out that the absence of civil liberties
such as those enunciated in the Universal Declaration
of Human Rights removed all meaning from the concept
of trade union rights. Similarly, the Committee on Freedom
of Association had stated that the rights of workers’
and employers’ organizations could only be exercised in a
climate free from violence, pressure or threats against the
leaders and members of the organizations, and that it was
for governments to ensure that this principle was respected.
The Government of Zimbabwe had deliberately boycotted
this Committee and perennially undermined its
advice concerning trade union rights and civil liberties.
The Worker members therefore called upon the Committee
to strongly urge the Government to stop using the
POSA in trade union affairs; to repeal the Criminal Law
that criminalized trade union activities; to stop demanding
prior authorization of trade union activities; to discontinue
violence, harassment, detentions and brutality against
both trade unionists and ordinary citizens; to withdraw all
cases against trade union leaders; to compensate all victims
of torture; allow displaced citizens to return peacefully
to their homes; to resuscitate social dialogue and to
apply the Convention in law and in practice. Finally, the
Worker members wished to call for an ILO mission to the
country and urged the Committee to include the conclusions
in a special paragraph.
The Employer members stated that the Government of
Zimbabwe continued to enact legislation that paralysed
freedom of association, in particular the POSA, and to
initiate criminal proceedings against trade union leaders
participating in public demonstrations. The Government
had also refused a high-level technical assistance mission
of the ILO. However, by ratifying the Convention, the
Government of Zimbabwe undertook international obligations
to bring its law and practice into line with the Convention.
This included the protection of civil liberties.
Regrettably, this was the second year that the Government
had not appeared before the Committee, although it
had participated in the discussions of the Committee this
year. In accordance with the Committee’s working methods,
as revised at the present session, the discussion of
this individual case would therefore be included in Part II
of the Committee’s report, and should also be mentioned
in a special paragraph for continued failure to apply the
Convention.
This case involved flagrant violations of the most basic
elements of freedom of association. There was evidence
of assaults, arrests, torture and police violence against
trade union leaders. There was an absence of civil liberties,
including freedom of speech, movement, association,
assembly, as well as freedom and security of persons.
This case was about a country that rejected human rights,
including the most fundamental cornerstone of the ILO,
freedom of association.
The Employer member of South Africa stated that the
events in Zimbabwe were a tragedy. The atrocities and
human suffering were beyond description. Workers were
being denied rights and were persecuted for standing up
for justice. The situation also affected employers. The
Government’s refusal to appear before the Committee
was evidence for its disrespect for the ILO and its fundamental
principles. Given the continuing violation of the
Convention by the Government, it was time for introspection
not only for Zimbabweans, but also for African and
international leaders to use all appropriate means to avert
further human suffering. Millions of workers had left the
country and families were being split.
The Worker member of Zimbabwe stated that Convention
No. 87, one of the pillars by which democracy was
measured and tested, was under threat due to the Government’s
refusal to abide by the previous conclusions of
the Conference Committee. The issue before the Committee
was whether Zimbabwe had improved with respect to
its observance and application of the Convention since the
Committee’s discussion in 2007. This was unfortunately
not the case.
In 2007, the Committee had discussed the need for labour
law reform to allow public servants to be part of
mainstream unions, with the authority to negotiate their
conditions of service by way of a National Employment
Council. He noted with grave concern the Government’s
dithering on this distortion in the country’s industrial relations
which had been criticized by the Committee of Experts.
Surprisingly, after the 2002 harmonization of the
Public Service Act (PSA) with the Labour Act, the Government
had reverted to the PSA in 2005 without consultation
with relevant industrial relations stakeholders. Furthermore,
prison service staff and the police were still not
allowed to form trade unions.
The Worker member also recalled that the Labour Act
was not in compliance with even the minimum international
labour standards. Chapter 28:01, section 2A, merely
referred to international labour standards, and the courts
refused to apply them because the relevant Conventions
had not been incorporated into domestic law. This was the
essence of the problem faced by trade unions in their everyday
struggle to protect their members.
The Zimbabwe Congress of Trade Unions (ZCTU) had
suffered its fair share of brutality from the Government.
The Government refused to learn from its previous acts
and omissions. On 13 September 2006, a number of
workers, among them ZCTU leaders, who had gathered to
raise the authorities’ awareness of the unbearable poverty
levels and the need for access to anti-retroviral drugs, had
met with the worst kind of police brutality. The torture
they had gone through merely for expressing themselves
was beyond any description. Arrests and detentions remained
the norm.
After May Day commemorations organized by the
ZCTU, on 8 May 2008, police had visited the homes of its
leaders, including the speaker himself, and arrested them.
They had been charged with “communicating falsehoods
which where prejudicial to the State” and later released on
bail, on condition that they made no political statements.
However, it was impossible to know what exactly was
considered political or non-political when dealing with
issues in the workplace and at national level. ZCTU
members had also suffered violence in the context of the
2008 elections, with civil servants and teachers having
been targeted the most because they were thought to be
opinion-makers in their communities. Yet, the ILO supervisory
bodies had requested the Government to respect
the right of workers to operate in a free and democratic
environment.
Although the POSA was rarely being used at present,
its place had been taken by the Criminal Law (Codification
and Reform) Act of 2006. The Worker member stated
that this Act had been used to infringe the right of the
ZCTU and its affiliates to express their views on the Government’s
economic and social policy. He himself was
due to stand trial under the Act on 23 June 2008.
The Government member of Slovenia spoke on behalf of
the Governments of Member States of the European Union,
and the candidate countries of Turkey, Croatia and
The former Yugoslav Republic of Macedonia, the countries
of the Stabilization and Association Process and the
potential candidates Albania, Bosnia and Herzegovina,
Montenegro, the EFTA countries Norway and Switzerland,
as well as Ukraine, the Republic of Moldova and
Armenia.
19 Part II/65
He deeply regretted that the Government of Zimbabwe
once again refused to participate in the discussion of the
Committee and urged the Government to resume its dialogue
with the ILO immediately and to accept a highlevel
technical assistance mission of the ILO under the
terms requested by the Committee in 2006. The deterioration
of the situation relating to trade unions rights in Zimbabwe
remained alarming. He shared the continuous concerns
of the Committee of Experts with respect to the
POSA. The Government should take all necessary measures
to ensure that the POSA was no longer used to infringe
the rights of workers and their organizations.
He further noted with great concern acts of anti-union
discrimination and interference under the Criminal Law
related to political activities of trade union members and
agreed with the relevant findings of the Committee on
Freedom of Association. The Government should drop all
charges connected to trade union activities and abstain
from measures of arrest and detention of trade union leaders
or members for reasons connected with such activities.
The Government was requested to provide full and detailed
information with respect to the cases of Mr Matombo
and Mr Chibebe.
He further stressed the interdependence between civil
liberties and trade union rights. A truly free and independent
trade union movement could only develop in a
climate of respect for fundamental human rights. The
Zimbabwean people had the right to enjoy freedom of
expression without harassment, intimidation or violence
and to live under the protection of the rule of law. He
therefore urged the Government to restore full respect for
the rule of law and take immediate steps to end the continuing
human rights violations.
The Worker member of Botswana declared that the acts
of violence in Zimbabwe were also targeting teachers,
students and education communities. The Zimbabwe
Teachers Association (ZIMTA) and the Progressive
Teachers’ Union of Zimbabwe (PTUZ) witnessed many
acts of violence such as killings, torture and other forms
of abuses against teachers in rural areas.
In the context of the national elections of 2008, teachers
had been accused of influencing the vote as role models
of their communities. In some areas, teachers had been
told to vacate their schools or to relocate, while others had
been threatened. Most violence had allegedly been perpetrated
by war veterans and the youth militia. Some teachers
had been arrested or abducted by the Central Intelligence
Organization operatives. Furthermore, thousands of
teachers had been prevented from voting in the first round
because they had deliberately been deployed outside their
voting wards as polling officers. This was a violation of
the constitutional right of teachers to elect their political
leaders.
The PTUZ had reported that at least 250 schools in 23
districts throughout the country had been affected by
some forms of violence in the period between 3 and
9 May 2008. In some instances, teachers had been beaten
in front of pupils and community members. Sixty-seven
teachers had been hospitalized in Harare, Kotwa, Karoi,
Rusape, Bonda, Howard, Guruve, Marondera and elsewhere;
139 teachers had to flee their schools and
213 teachers’ houses had been looted. Many teachers had
fled to neighbouring countries and were unlikely to return,
worsening the brain drain in the education sector.
On 15 May 2008, Mr Raymond Majongwe, the General
Secretary of the PTUZ, had again been briefly arrested by
the police at the High Court of Zimbabwe where he had
been attending a hearing of trade union leaders. His arrest
had occurred following advertisements posted by the
PTUZ deploring the fact that teachers were being beaten
and harassed at their workplaces. Mr Raymond Majongwe
had regularly been harassed and detained for voicing demands
aimed at improving the crippled education system
in Zimbabwe. On 6 October 2007, the police had intervened
brutally to disperse a World Teachers’ Day celebration,
arrested Mr Majongwe and interrogated him for
hours. Earlier, his passport had been seized to prevent him
from leaving the country to attend an international trade
union meeting. The acts of violence committed by the
Government against teachers and trade unionists were to
be condemned. The Zimbabwean authorities were urged
to respect all human rights and trade union rights. Public
Service International, Education International and the ILO
should send special missions to Zimbabwe.
The Government member of the United States stated that
her Government noted with profound regret that the
Committee was discussing this extremely serious case
without the participation of the Government of Zimbabwe.
Her Government was deeply disturbed by the pervasive
and systematic abuse of worker and human rights
in Zimbabwe. The Government of Zimbabwe’s unequivocal
record regarding trade union rights, confirmed by both
the Committee of Experts and the Committee on Freedom
of Association, included obstruction, harassment, imprisonment,
and reprisals, constituting massive, flagrant and
defiant violations of Convention No. 87, freely ratified by
Zimbabwe. Recent events demonstrated that respect for
the rule of law in Zimbabwe continued to deteriorate.
Despite the fact that the offer of ILO assistance did not
constitute a sanction but help which might have positive
effects, the Government regrettably and persistently refused
to accept an ILO high-level mission to deal with the
ongoing violations of Convention No. 87. Regardless of
whether it accepted a high-level mission, the Government
of Zimbabwe had an immutable international obligation
to implement the provisions of Convention No. 87 both in
law and practice, and to report to the ILO on its actions in
this regard. She hoped that the Government would reconsider
its attitude towards the ILO supervisory system, but
stressed that as a minimum it must urgently take the necessary
steps to grant all citizens their fundamental worker
and human rights.
The Worker member of the United Kingdom stated that
on 13 September 2006, the ZCTU had planned a demonstration
to protest against the high cost of living and high
taxation and to demand anti-retroviral drugs for HIV sufferers.
The notification under the POSA had been given to
the police, which authorized the demonstration. Soon after
the demonstration had begun, the leaders of the ZCTU
and affiliated unions had been rounded up by the police
and ordered to sit on the road. ZCTU leaders, including
President Matombo, General Secretary Chibebe and Vice-
President Lucia Matibenga had been taken to the Matapi
police station. After having been subjected to severe and
prolonged physical violence by police officers, they had
been charged on the spot under the POSA with planning
an illegal demonstration intended to overthrow a constitutionally
elected Government.
The ZCTU leaders had suffered numerous injuries, including
broken bones and lacerations during this incident,
but had been denied medical assistance and access to
lawyers for two days. On 15 September, they had been
taken to a hospital. Nevertheless, only
Mr Wellington Chibebe received treatment and only after
the intervention of the ZCTU lawyers and a member of
the non-governmental organization Doctors for Human
Rights (DHR). Despite having suffered several serious
injuries, he had only been operated on four days later and
had been tried in secret on the hospital premises. The
other colleagues, including Lucia Matibenga, Denis Chiwara,
James Gumbi and George Nkiwane, had been returned
to the police cells, without any treatment. They had
been sent to court the next day and were granted bail. The
court ruled that the beatings in the cells had to be investigated
and the perpetrators brought to justice. However,
since the police had been responsible for the investigation,
almost two years after these horrific events, no
charges had been brought against the officers who had
19 Part II/66
committed the torture, nor the senior officers who had
ordered it.
The Worker member of the United States stated that the
case was a testimony of the ZCTU fight against labour
injustice and state tyranny. The Government had repressed
a peaceful mass demonstration by ZCTU in September
2006. The atrocious detention, beatings and injuries
inflicted on ZCTU leaders and members at the time
were widely known. The President of Zimbabwe seemed
to have thought that the truth could be covered up by refusing
entry into Zimbabwe of a delegation of the Coalition
of Black Trade Unionists, a constituency organization
of the American Federation of Labor – Congress of Industrial
Organizations (AFL–CIO). The AFL–CIO had already
started distributing information on the repression of
the ZCTU’s demonstration.
The Government could not hide the truth when it came
to de jure violations of the Convention. For example, the
2005 Labour Amendment Act denied public service employees
the right to form and join trade unions, collectively
bargain or strike. Authentic labour organizations
were undermined by the legal recognition of so-called
workers’ committees. Moreover, the law impeded the
right to strike by imposing a 50 per cent voting requirement,
compulsory conciliation periods, compulsory twoweek
advance notice and unilateral referrals to compulsory
arbitration. Employers had a legal right to permanently
replace strikers, and individual strikers were liable
for economic damages. The Government’s definition of
essential services was not in line with ILO jurisprudence,
and illegal strikes could result in five years imprisonment
upon conviction. Given these flagrant violations of the
Convention, the Committee was urged to mention this
case in a special paragraph of its report.
The Worker member of South Africa provided examples
of the severe violations of trade union rights and harassment
of trade union leaders in Zimbabwe. On 28 February
2008, the General Secretary of the ZCTU had applied for
authorization to hold a Women’s Day commemoration
meeting on 8 March. The Government had not authorized
the meeting and the ZCTU therefore had taken the matter
to the court, which ruled in favour of the union.
For May Day this year, the ZCTU had applied for 34
venues, out of which five had been denied. The reasons
for the refusal had not been given immediately in some
cases, while in others the refusal had been notified on the
day of the event. The ZCTU had had to cancel the commemoration
events despite the fact that some workers had
already gathered and that costs had already been incurred
for the events.
The harassment and victimization of ZCTU leaders had
further escalated on 6 May, when the police had gone to
the houses of the ZCTU’s General Secretary and President.
The two leaders had been arrested, interrogated for
more than six hours and charged with incitement to rise
against the Government and with falsehoods because they
had told workers that people were being killed during the
current political violence. Bail had initially been refused
on the ground that the two leaders were dangerous. It had
later been granted, but under the unacceptable condition
that they should not speak at any political gatherings.
Their cases would be heard on 23 June 2008, and they
were liable to a fine of level 14, imprisonment for a period
of 20 years or both. Violence was the order of the
day in Zimbabwe. Parents were being beaten in front of
their children. People were fleeing to neighbouring countries.
She expressed distress at the way the Zimbabwean
authorities were treating trade unionists and requested that
the charges against the two ZCTU leaders be dropped.
The Government member of Cuba stated that her interventions
had always aimed at encouraging the governments
to fulfil their obligations regarding both the submission
of reports and the cooperation with the ILO supervisory
bodies. In this case, the situation was not clear
and the reason for the absence of the Government unknown.
Consequently, increased efforts should be made
to establish contacts with the Government of Zimbabwe.
The defiance shown by the Government could be the effect
of its dissatisfaction over the results achieved by the
Committee. Her delegation did not support any decision
regarding the application of measures or sanctions against
any government before having exhausted the contacts and
technical assistance required.
The Government member of Canada also speaking on
behalf of the Government members of Australia and New
Zealand, expressed profound concern about serious violations
of freedom of association in Zimbabwe, which was
essential to the existence of democratic society. He shared
the view of the Committee that a truly free and independent
trade union movement could only develop in a climate
of respect for fundamental human rights. Failure to establish
such a climate was among the root causes of the crisis
in governance in Zimbabwe.
Following the general elections on 29 March 2008,
trade union leaders, including the President of the ZCTU
and its Secretary-General, Mr Lovemore Matombo and
Mr Wellington Chibebe, and the Secretary-General of the
Progressive Teachers’ Union, Mr Raymond Majongwe,
had been subjected to harassment and arrest. In Zimbabwe,
trade unionists suffered serious infringements of
their rights. They were subjected to politically motivated
violence, killing, intimidation and harassment. In order to
overcome the current political and economic crisis, the
Government must ensure that social and political actors
were given the space to defend workers’ rights so that
they could play a constructive role in resolving the crisis.
The POSA, despite amendments made, had been used
to infringe the rights of workers’ organizations. The Government
was urged to ensure that trade unions were allowed
to carry out their activities and exercise their rights
guaranteed under the Convention, to restore full respect
for the rule of law and to end human rights violations.
Canada, Australia and New Zealand supported the work
of the Committee of Experts, especially its effort to solicit
further information and its suggestion that Zimbabwe
receive a high-level technical assistance mission.
The Worker members pointed out that, while the Government
of Zimbabwe advocated impunity, the workers
called for dialogue; while the Government propagated
violence, the workers called for peace; while the Government
advocated injustice, the workers called for justice;
and while the Government perpetuated brute force,
the workers advocated the force of truth. Evidence of violence
after the 2008 general elections was available on the
Internet.
The Government of Cuba had supported sanctions
against Apartheid in South Africa, but its position concerning
Zimbabwe now seemed to be considered hypocritical.
The Government of Zimbabwe was now taking
people’s identification documents away so that they could
not obtain food rations or vote. It had also decided to prohibit
non-governmental organizations from supplying
food. Such desperate and inhuman measures must be discouraged.
The Worker members suggested that the Conference
Committee take certain measures. First, the Committee
should consider sending a tripartite high-level mission,
composed of members of the Governing Body, to conduct
inquiries and to assist the Government in finding solutions
to the current problems. Second, the Committee
should ask all Governments which had a diplomatic presence
in Zimbabwe to observe the trial of Mr Chibebe and
Mr Matombo, due to start on 23 June 2008. Their presence
would serve as the eyes and ears of those who could
not be there. The Worker members also called on the
Government of Zimbabwe to take various measures. Social
dialogue must be restored. The Criminal Law (Codification
and Reform) Act must be repealed. All charges
19 Part II/67
against trade unionists must be withdrawn. It must be
ensured that the POSA would not be used against trade
unions. No victimization, harassment, detentions or arrests
against trade unionists or citizens should take place.
Victims of torture must be compensated. Those who had
been displaced from their homes must be given other accommodation.
The Employer members endorsed the statement by the
Worker members and their recommendations. This discussion
marked a shameful day for Zimbabwe. The Government
had lost its legitimacy and moral authority. It
could have and should have accepted an ILO high-level
mission, taken ILO advice on how to implement Convention
No. 87, provided freedom of speech, guaranteed political
freedom, ensured security, provided for a right of
assembly, realized the right of association and protected
basic civil liberties, but it would not have. The Employer
members recalled that the most serious cases could be
subject to a complaint under article 26 of the ILO Constitution.
The Employer members urged the 147 other
Members of the ILO which had ratified Convention No.
87 to join such a complaint against Zimbabwe and the
Governing Body to approve a commission of inquiry provided
for under this procedure.
The Government member of Cuba specified that the attitude
of her Government with regard to apartheid could by
no means be considered hypocritical. She recalled that the
fight against apartheid, far from having been limited to
mere statements, involved the sacrifice of many Cuban
people. She reiterated that her Government would not
support any decision regarding the application of measures
or sanctions against any government before the contacts
and technical assistance required had been exhausted.
Conclusions
The Committee deeply deplored the persistent obstructionist
attitude demonstrated by the Government through its
refusal to come before it in two consecutive years and thus
seriously hamper the work of the ILO supervisory mechanisms
to review the application of voluntarily ratified Conventions.
The Committee recalled that the contempt shown
by the Government to this Committee and the gravity of the
violations observed had led this Committee to decide last
year to mention this case in a special paragraph of its report
and to call upon the Government to accept a high-level technical
assistance mission.
The Committee further deplored the Government’s refusal
of the high-level technical assistance mission that the
Committee had invited it to accept. The Committee observed
with profound regret that the comments of the Committee of
Experts referred to serious allegations of the violation of
basic civil liberties, including the quasi-systematic arrest and
detention of trade unionists following their participation in
public demonstrations. In this regard, the Committee further
regretted the continual recourse made by the Government
to the Public Order and Security Act (POSA) and
lately, to the Criminal Law (Codification and Reform) Act of
2006, in the arrest and detention of trade unionists for the
exercise of their trade union activities, despite its calls upon
the Government to cease such action. The Committee also
observed that the Committee on Freedom of Association
continued to examine numerous complaints regarding these
serious matters.
The Committee took note with deep concern of the vast information
presented to it concerning the surge in trade union
rights and human rights violations in the country and
the ongoing threats to trade unionists’ physical safety. In
particular, it deplored the recent arrests of Mr Lovemore
Matombo and Mr Wellington Chibebe and the massive violence
against teachers as well as the serious allegations of
arrest and violent assault following the September 2006
demonstrations.
The Committee emphasized that trade union rights could
only be exercised in a climate that was free from violence,
pressure or threats of any kind. Moreover, these rights were
intrinsically linked to the assurance of full guarantees of
basic civil liberties, including freedom of speech, security of
person, freedom of movement and freedom of assembly. It
recalled that it was essential to their role as legitimate social
partners that workers’ and employers’ organizations were
able to express their opinions on political issues in the broad
sense of the term and that they could publicly express their
views on the Government’s economic and social policy. The
Committee therefore urged the Government to ensure all
these basic civil liberties, to repeal the Criminal Law Act
and to cease abusive recourse to the POSA. It called upon
the Government immediately to halt all arrests, detentions,
threats and harassment of trade union leaders and their
members, drop all charges brought against them and ensure
that they were appropriately compensated. It called upon all
Governments with missions in the country to be present at
the trial of Mr Matombo and Mr Chibebe and follow closely
all developments in relation to their case.
The Committee urged the Government to cooperate fully
in the future with the ILO supervisory bodies in accordance
with the international obligations that it voluntarily assumed
by its membership in the Organization.
The Committee firmly urged the Government to ensure
for all workers and employers full respect for the civil liberties
enunciated in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political
Rights without which freedom of association and trade union
rights were void of any meaning. It urged the Government
to accept a high-level, tripartite, special investigatory
mission in this case of flagrant disregard for the most basic
freedom of association rights. It urged the other governments
that had ratified this Convention to give serious consideration
to the submission of an article 26 complaint and
called upon the Governing Body to approve a commission of
inquiry.
The Committee decided to include its conclusions in a special
paragraph of its report. It also decided to mention this
case as a case of continued failure to implement the Convention.
The Worker members highlighted the exceptional
statement of the Employer members on this case and expressed
their thanks in this regard.
Document No. 263
ILC, 98th Session, 2009, Report of the Committee on the
Application of Standards, pp. 16 Part Two/64-16 Part
Two/68 (Swaziland)
16 Part Two/1
International Labour Conference Record of Proceedings 16
98th Session, Geneva, 2009 PART TWO
Third item on the agenda: Information
and reports on the application of
Conventions and Recommendations
Report of the Committee on the
Application of Standards
PART TWO
OBSERVATIONS AND INFORMATION CONCERNING PARTICULAR COUNTRIES
Contents
Page
I. Observations and information concerning reports on ratified Conventions
(articles 22 and 35 of the Constitution) ........................................................................................................ 5
A. Discussion of cases of serious failure by member States to respect their reporting
and other standards-related obligations ................................................................................................ 5
(a) Failure to supply reports for the past two years or more on the application of ratified ................. 5
(b) Failure to supply first reports on the application of ratified Convention ....................................... 5
(c) Failure to supply information in reply to comments made by the Committee of Experts ............. 6
(d) Written information received up to the end of the meeting of the Committee on the
Application of Standards ............................................................................................................... 7
B. Observations and information on the application of Conventions ....................................................... 8
Convention No. 29: Forced Labour, 1930 ........................................................................................................... 8
MYANMAR (ratification: 1955) ..................................................................................................... 8
Convention No. 35: Old-Age Insurance (Industry, etc.), 1933 .......................................................................... 8
CHILE (ratification: 1935) ............................................................................................................. 8
Convention No. 81: Labour Inspection, 1947 ..................................................................................................... 13
NIGERIA (ratification: 1960) ......................................................................................................... 13
Convention No. 87: Freedom of Association and Protection of the Right to Organise, 1948 ......................... 16
BELARUS (ratification: 1956) ........................................................................................................ 16
COLOMBIA (ratification: 1976) ..................................................................................................... 23
ETHIOPIA (ratification: 1963) ....................................................................................................... 36
GUATEMALA (ratification: 1952) .................................................................................................. 41
MYANMAR (ratification: 1955) ...................................................................................................... 46
PAKISTAN (ratification: 1951) ....................................................................................................... 53
PANAMA (ratification: 1958) ......................................................................................................... 56
16 Part Two/64
SWAZILAND (ratification: 1978)
A Government representative, Minister of Labour and
Social Security, underlining the enduring value of freedom
of association, protection of the right to organize and
trade unionism, expressed unease at the selection of the
case of the application of Convention No. 87 in Swaziland
for examination by the Committee, given the steps taken
by his Government to comply fully with ILO Conventions,
mainly with ILO assistance. Nevertheless, it was a
positive opportunity to share his country’s progress on
applying the Convention with the Committee. Referring
to allegations made by the International Trade Union
Confederation (ITUC) and the Swaziland Federation of
Trade Unions (SFTU) of harassment, arrest and detention
of trade union leaders who had participated in a march
and the presentation of a petition, he denied any such action
by his Government. The Secretary-General of the
SFTU, Mr Sithole, had indeed been questioned by police,
but his fundamental constitutional rights had not been
violated, nor had those of his family. His Government did
not believe in threatening and harassing people, least of
all for exercising their trade union rights. He explained
that Mr Sithole had been questioned in connection with
insulting statements made against the King of Swaziland
at a march held in Johannesburg, South Africa, on 16 August
2008. The statements were close to constituting a
criminal offence, and he suggested that any person making
or connected with such statements could expect to be
questioned by the police. On 21 August 2008, Mr Sithole
had voluntarily presented himself for questioning at
Manzini Regional Police Headquarters, accompanied by
two other trade unionists, after officers, only two of
whom were armed, had visited his home to invite him to
do so, which was common police practice. It should be
noted that there was no allegation that Mr Sithole had
been threatened with a firearm. He had left after being
interviewed for less than an hour, and although an offence
had been suspected, he had been neither harassed, arrested
or detained. The police had simply done its duty to enforce
the laws of the land and ensure that no double standards
existed. It was not a violation of trade union rights
to question someone in connection with any perceived
violation of the law, provided that such questioning observed
the principles of justice. He stressed the need for
accusations to be accompanied by evidence to substantiate
them.
He noted that issues had also arisen with regard to trade
unionism in the prison and police services and the fact
that some individuals had exercised their constitutional
rights and brought legal proceedings against the Government.
Although they had lost an appeal regarding the
formation of trade unions, the judicial ruling handed
down had suggested that the Government should consider
amending certain laws. The Government would review all
laws in order to bring them into line with the Constitution,
and the Tripartite Drafting Committee’s report on the
Industrial Relations Amendment Bill had made some important
proposals in that regard.
Turning to the allegation that the police had arrested
several union leaders on their way to stage a peaceful
protest action, thereby violating Convention No. 87,
which Swaziland had ratified and incorporated into its
domestic legislation, he expressed the view that the allegation
was exaggerated. Swaziland had taken various
legislative steps to ensure full compliance with international
labour standards, including by monitoring and
amending legislation as necessary, with ILO support. The
allegation concerning serious violations of workers’ rights
during a peaceful and lawful strike by textile workers,
including beatings and shootings with live ammunition,
contained serious factual inaccuracies. Workers had not
been shot at using live ammunition, and there was no evidence
to support such a claim. The complaint also omitted
to state that the originally peaceful strike had deteriorated
into violence, particularly against non-striking workers
and the police. He refuted claims that the strike had been
stopped by police brutality, and that police officers had
stolen medical reports and warned doctors against issuing
medical reports without police permission, as there was
no evidence and the police was not authorized to do so. In
fact, the striking workers had taken an independent decision
to end the strike, which had by then lasted around a
month. Despite provocation, the police, some of whom
had sustained injuries during the course of their duties,
had maintained law and order by applying only minimum
force where necessary. With regard to the allegation that
an unidentified worker had been drowned by police, he
underlined the public expectation that the police would
operate within the law. Anyone with evidence to support
this allegation should pursue justice through the courts.
Several allegations made, concerning shootings and death
threats, also lacked any evidence to substantiate them and
unduly portrayed tyranny by the police. It had also been
alleged that workers engaged in protected strike action
had been dismissed, which automatically constituted unfair
dismissal under Swaziland law and could be costly
for employers. The Government did not support such
dismissals.
He drew attention to the increasing tendency of peaceful
socio-economic protests to become violent, which
went against the spirit of Convention No. 87. Under section
40 of the Industrial Relations Act, workers not engaged
in an essential service were entitled to take part in
peaceful protests to promote their socio-economic interests,
but many such actions were hijacked by political
groups to pursue their own agenda, which was often at
variance with those of the workers concerned. Violence
towards police and the public during such events was increasingly
frequent and threatened public order. In such
circumstances, the police was expected to carry out its
mandate. He gave several examples of marches and other
demonstrations that had ended in violence, including one
scheduled to coincide with national elections in September
2008. The Government had denied permission for the
demonstration to be held on the grounds that it was purely
political, but the workers had gone ahead with their pro16
Part Two/65
test, seriously threatening the election process. Although
the line between socio-economic and political matters was
always thin, the protest in question had clearly been political
in nature, as it had been aimed at regime change. It
should also be noted that a demand for changes to the
Constitution had already been tabled with the High-Level
Steering Committee on Social Dialogue, in line with the
recommendations of the ILO high-level mission to Swaziland
in June 2006.
He emphasized that social dialogue had been welcomed
in Swaziland, where much had been achieved in terms of
its institutionalization. Lists of issues prepared by the social
partners were discussed by committees within the
structure. The Labour Advisory Board had recently
reached agreement on the draft Industrial Relations
Amendment Bill, and the proposed amendments covered
most of the comments made by the ILO supervisory bodies.
While he acknowledged that the process had taken
time, that was only to be expected when tripartite consultation
was involved. He outlined some of the proposed
amendments, which demonstrated that the comments of
the Committee of Experts and other bodies had been fully
taken into account. In his view, the rights of workers received
further support from the Constitution, the provisions
of which prevailed over any other law. He reaffirmed
his country’s commitment to observing the letter
and spirit of all the ILO Conventions it had ratified, both
in law and in practice, and looked forward to further cooperation
with and support from the ILO.
The Worker members expressed the view that the case
of Swaziland should be considered in the light of previous
observations by the Committee of Experts and the ILO
high-level mission in 2006, as well as the continuous,
deliberate, systematic and well-calculated violations perpetrated
by the State through various legislative acts. Recalling
previous discussion of the application by Swaziland
of Convention No. 87 and the direct contacts mission
of 1996, they said that persistent violations of the Convention
had prompted the ILO to send a high-level mission
to the country to review the impact of its Constitution
on the rights of workers and to make suggestions for
a meaningful framework for social dialogue in the light of
steps already taken. The high-level mission had noted a
number of laws that were interfering directly with the
operation of trade unions and civil society in general and
had requested the Government to keep it informed of the
progress made in a number of areas. The mission had held
meetings with interested parties at all levels, from the
Prime Minister to civil society groups; however, neither
the direct contacts mission nor the high-level mission had
persuaded the Government to fulfil its obligations. They
added said that the Government had claimed to have
submitted a copy of the Media Council Bill to the ILO,
but that it had not done so. The Bill placed statutory restrictions
on the nomination of union candidates and their
eligibility for office, in direct contradiction with the aims
and objectives of Convention No. 87. In response to calls
from the ILO supervisory bodies to amend certain sections
of the Bill, the Government had asserted that it
needed more time. With regard to provisions allowing
employers to dismiss workers during a strike, the Government
had claimed that they were intended to act as a
deterrent for workers against flouting striking procedure
before a strike. Many other laws contained similar provisions,
but no action had been taken on the recommendations
made by the high-level mission. Despite various
ILO missions to Swaziland, the arrest, detention and brutalization
of trade union members, human rights defenders
and peaceful demonstrators continued. Workers engaged
in lawful strikes in the textiles industry had been dismissed
and protesters had been maliciously attacked, in
clear violation of workers’ rights. Swaziland had voluntarily
ratified Convention No. 87 and was therefore
obliged to recognize the trade union freedoms provided
for therein, implementing the letter and spirit of the Convention
in law and practice. They outlined various measures
taken against trade unionists by the police, which
demonstrated that no pluralism was accepted in Swaziland.
The autocratic governance system was stifling civil
society, including trade unions. Workers suspected that
the Government of Swaziland was maliciously resisting
the right to freedom of association by prison staff, denying
them even the possibility of forming a trade union, in
part because of acts committed against incarcerated trade
unionists.
Expressing the view that decrees had always been used
to circumvent the law-making process and only served the
interests of the authorities, they affirmed that, if the practice
were allowed to become a way of life, workers in
Swaziland would never enjoy democratic values in their
workplaces. The ILO had always encouraged its member
States to engage in social dialogue in order to ensure that
workers’ rights were guaranteed. In that regard, they highlighted
the punitive effects on Swaziland’s workers of
various acts and decrees that remained in force. In an
echo of the country’s colonial past, the police forced
themselves into trade union meetings and conferences. In
its current form, the Industrial Relations Act was divisive
and unnecessary, particularly given that the Southern African
Development Community was encouraging its
members, which included Swaziland, to harmonize their
laws with a view to comprehensive regional economic
integration. They recalled that the Committee of Experts
had duly noted the previous tripartite undertaking to establish
a special consultative tripartite subcommittee
within the framework of the High-Level Steering Committee
on Social Dialogue, the purpose of which was to
review the impact of the Constitution on the rights embodied
in Convention No. 87 and to make recommendations
to the competent authority to eliminate discrepancies
between existing provisions and the Convention. This had
been promulgated in October 2007, with notice given of
the appointment of members of the Steering Committee.
However, the initiative had failed to obtain any result.
There was still no sign of commitment to a programme to
review laws and, if anything, the situation was worsening.
They emphasized that the Government of Swaziland did
not exist in isolation, but had to coexist with its citizens.
Arrest, detention and other forms of oppression and suppression
did not present a good image of Swaziland. Its
decrees contradicted peace-making, yet peace and social
justice were at the foundation of the ILO and were the
desire of all humanity. The Government of Swaziland
seemed intent on continuing to inflict pain on its workers,
throwing the concept of social dialogue out of the window.
The establishment of a functioning tripartite structure
and a subcommittee to examine the Constitution and
the concept of constitutionalism was fundamental to ensuring
genuine democracy in the world of work. They
cautioned against referring to regime change in the context
of sub-Saharan Africa, given the unfortunate connotations
of the phrase. The basic rights of workers had nothing
to do with regime change. The statements by the Government
representative on several issues served only to
support the workers’ case against the actions of the Government,
the police and other bodies. Trade unions had
evidence of the arrest and torture of a number of individuals,
but they raised the question of what action the Government
would take. Even as the Committee continued its
deliberations, the Government was preparing to approve
new laws that would have a detrimental effect on workers’
rights.
The Employer members were sceptical about the progress
alleged by the Government of Swaziland. National
legislation had basically remained unchanged since the
first examination of the case in 1996, and the 50 per cent
threshold for workers to organize did not constitute progress,
since it was far too high. The present case consti16
Part Two/66
tuted a seamless history of repression of free speech, police
brutality and oppression. The Employer members
expressed their disbelief in the Government’s statement
that the issues raised would be solved, and raised serious
doubts as to the possibility that the situation could improve
in the near future.
The Government member of Norway, speaking on behalf
of the Government members of the Nordic countries,
Denmark, Finland, Sweden and Norway, stated that the
human rights situation in Swaziland, including the right to
organize and to arrange and participate in legal strikes in
accordance with Convention No. 87, was a long-standing
case and had been discussed by this Committee several
times. She took note of the allegations of repercussions on
trade union activists and of the dismissal of workers who
had taken part in lawful industrial action. She expressed
concern that the ITUC had also reported serious acts of
violence and brutality by the security forces against trade
union activists and leaders. She called on the Government
to respond to these allegations in detail. Her Government
also noted that the Committee of Experts had once again
highlighted the non-conformity of some of the laws with
Convention No. 87. While the Committee of Experts had
acknowledged that the Industrial Relations Amendment
Bill had taken into account some of its comments, certain
issues still remained unaddressed. Among others, the national
legislation still did not provide for the right of
workers to organize and to take lawful industrial action,
as provided for in the Convention. She urged the Government
of Swaziland to continue to make use of the
technical assistance of the Office to bring the legislation
into conformity with Convention No. 87 and to provide
detailed information regarding the reported acts of violence
against trade union activists and those who had participated
in lawful and peaceful strikes.
The Worker member of Swaziland stated that, unfortunately,
Swaziland was again listed among the countries
violating Convention No. 87. For over ten years, the Government
had been advised by the ILO not to use the 1963
Public Order Act and to repeal the 1973 State of Emergency
Decree. However, the 1963 Act continued to be
applied and the Government had stated that the contents
of the 1973 Decree had been included in the new Constitution.
As a result, the new Constitution, like the
1973 Decree, did not respect the doctrine of the separation
of powers, banned political parties and provided for a
very limited Bill of Rights. He referred to a number of
examples of continued gross violations of the Convention
by the Government, such as the arrest and detention of a
number of textile workers, mostly women, who had participated
in a legal strike, some of whom had been severely
injured by the police; the detention and interrogation
by the police of trade union leaders and other workers
who had participated in marches in Sandton and Johannesburg
to deliver a petition at the SADC Summit; the
interception of workers by the police in a lawful demonstration
in September 2008; and the interference by the
police in other events organized by workers and arrests of
activists. He added that certain political parties had been
banned under the Suppression of Terrorism Act, and that
a Bill on Public Servants was being prepared by the Government
without consulting the tripartite Labour Advisory
Board. In conclusion, he said that the system of governance
in Swaziland was profoundly anti-democratic, economically
unjust and socially discriminatory. The Government
systematically evaded the only tool of conflict
management, which was social dialogue accompanied by
ILO technical assistance.
The Employer member of Swaziland indicated that the
Tripartite Drafting Committee had completed its work,
and that the Bill had recently been adopted by the Labour
Advisory Board. All the issues raised by the Committee
of Experts had been adequately addressed. With regard to
the application of the Convention in practice, she indicated
that she was not aware of any dismissal of workers
engaged in lawful strikes, but if that were the case, the
Swaziland Industrial Court was the competent authority to
review such cases of violation and to effectively punish
the employers found guilty of infringing workers’ rights.
She urged all members of her Federation to comply with
the law in this respect. Generally speaking, employers
were not always in favour of strikes because of their negative
impact on the economy and business in general. A
significant number of strikes and protests were due to
reluctance to engage fully in social dialogue. While the
Government of Swaziland was committed to social dialogue,
progress was desperately slow, and the recently
established infrastructures were not frequently utilized.
However, in the context of the current economic meltdown,
it was only through social dialogue that a country
could forge a way forward.
The Worker member of South Africa recalled that the
Committee of Experts had been examining this case for
several years and that, despite the Government’s commitment
to achieve progress, the situation had not improved
in practice. The adoption of the Industrial Relations
Act in 2000 had appeared to be a positive step.
However, the Government was still applying the state of
emergency legislation, such as the Public Order Act of
1963 and section 12 of the Decree of 1973 on trade union
rights, against workers and their organizations, thereby
violating civil freedoms. Since 1973, the current Government
of Swaziland had been ruling the country through
the use of force, impunity, absence of social dialogue,
lack of the rule of law, brutality against citizens engaged
in peaceful demonstrations and failure to respect the judicial
authorities. In May 2008, the Parliament of Swaziland
had passed a controversial Act empowering the Prime
Minister to declare virtually anyone or anything a terrorist
activity. The Parliamentary elections of September 2008
had been declared by the Pan-African observation mission
as infringing basic democratic rights, and a Commonwealth
expert team had made recommendations for constitutional
reform to ensure political pluralism. It would
not be possible to note tangible progress until the Industrial
Relations Act and the Terrorism Act were repealed,
the arrests and detention of political and trade union leaders
discontinued and the constitutional review enabling
the people of Swaziland to democratically choose their
Government undertaken and genuine, meaningful and
result-oriented social dialogue aimed at achieving socioeconomic
justice, decent work and proper governance
introduced. Trade union and political activists who feared
for their lives were currently taking refuge in neighbouring
South Africa. The case of Swaziland should therefore
be mentioned in a special paragraph.
The Worker member of Botswana emphasized that the
monarchy was circumventing the Bill of Rights enshrined
in the Constitution by bringing back the 1973 State of
Emergency Decree through the backdoor with the introduction
of the Suppression of Terrorism Act of 2008. This
Act removed all the fundamental rights guaranteed in the
Constitution and the Universal Declaration of Human
Rights which provided for the basic freedoms of opinion,
expression, association, belief and conscience. He expressed
surprise and dismay that Mario Nasuku and Thulani
Naseko had been arrested. Mario Nasuku, the leader
of the People’s United Democratic Movement
(PUDEMO), was facing charges in connection with terrorism,
or alternately sedition. Thulani Naseko, a human
rights lawyer, was alleged to have made seditious statements
on May Day in 2009. Their arrest and that of others
was a clear indication that there was no freedom of association
and expression in Swaziland. Jan Sithole, Secretary-
General of the Swaziland Federation of Trade Unions,
was an example of a trade union activist who had
been subjected to torture and harassment by the security
forces. He condemned the arrests of Mario Nasuku and
16 Part Two/67
Thulani Naseko and called for their immediate and unconditional
release. He also called on the ILO to assist the
Government with its legislative reform and emphasized
that strike action was a way of exercising freedom of expression.
The Worker member of Senegal recalled that the case of
Swaziland had been discussed several times by the Committee,
and that both the Workers and the Employers had
always emphasized the seriousness of this case. The
comments of the Committee of Experts were still a matter
of concern despite the severe conclusions adopted by the
Conference Committee for many years. The Government
had ratified the ILO Conventions, but always found ways
to evade its obligations, and workers were still denied
their basic right to organize in full freedom. In his view,
the Government’s silence in relation to the requests of the
Committee of Experts demonstrated its desire to evade its
obligations. He endorsed the regrets expressed by the
Committee of Experts concerning the Government’s persistent
refusal to amend the legislation of 1973, which had
established a state of emergency that had lasted for over
36 years and used public order as a pretext to suppress
legitimate and peaceful strikes. The Government seemed
to have forgotten the public social order and its responsibility
to ensure the implementation of the Convention. He
considered that the case needed to be classified as a continued
failure to apply the Conventions on freedom of
association. He recalled the extreme gravity of the situation
in practice, as testified by Mr Sithole during a visit to
Senegal. Such a situation merited the inclusion of the case
in a special paragraph of the Committee’s report.
The Worker member of Germany, speaking on behalf of
the Worker members of the European Union, referred to
the relations between the European Union and Swaziland,
which were based on the Cotonou Agreement and the
South African Development Community (SADC) Agreement.
The EU high-level mission to the country in May
2009 had noted that the Human Rights Commission had
still not been set up and that the Constitution had not yet
been amended. The mission had also noted that freedom
of assembly was not guaranteed, that the Terrorism Act
was utilized to prohibit demonstrations by civil society,
including trade unions, and that murders and torture of
members of civil society were not prosecuted. She added
that the Cotonou Agreement represented the give and take
of development aid versus democracy and human rights.
As illustrated above, Swaziland had not taken steps forward,
but rather backward. The Worker members of the
European Union expected the European Union to draw
the obvious conclusions from the lack of noticeable progress
in respect of democracy and human rights. This was
not about stopping development aid for Swaziland. However,
the European Union should demand that the Government
of Swaziland respect its commitments under the
Cotonou Agreement and implement the recommendations
of the EU high-level mission.
The Government representative of Swaziland was encouraged
by the constructive comments made by some of
the members and wished to assure the Committee that all
comments would be given due consideration. Since he
had already covered most of the comments in his main
statement, he refrained from repeating them. Although
this was not the first time that Swaziland had appeared
before the Committee concerning this Convention, he
reiterated that this did not imply that nothing had been
done in this regard. Significant progress had been made
on legislative reform aimed at ensuring future compliance.
In this regard, the Industrial Relations Act of 2000
had been amended several times since its promulgation
and other amendments were under way. This had been
achieved with the full participation of the social partners
and the assistance provided by the ILO. With regard to
social dialogue, the Kingdom of Swaziland had established
a high-level national social dialogue committee
consisting of cabinet ministers, legislators, members of
the business community as well as workers. He wished to
report to this Committee that Swaziland’s tripartite partners
had identified and agreed on the development of a
Decent Work Country Programme and on a centralization
of social dialogue to attain decent work objectives. Social
dialogue was also to be used as the entry point for ILO
technical assistance. The Government was committed to
working with the social partners to achieve their national
objectives and to improving the quality of life. ILO technical
support was necessary to be able to complete the
development of the social dialogue initiative that had been
started in Swaziland. The proposed draft legislative
amendments had been submitted to the ILO as per normal
practice. The Ministry had set up a programme to have
the drafts passed by the relevant legislative authorities and
would report on progress to the Committee of Experts in
November 2009.
The Worker members recalled that the Committee had
decided in 2005 on a high-level mission to Swaziland,
following which a Tripartite Agreement had been signed
in 2007. However, not a single step had yet been taken to
implement the Agreement and in the past two years the
situation of trade unions and of all fundamental human
rights, in particular under the provisions of the Terrorism
Act, had worsened. There was no social dialogue in Swaziland
and the Government needed to take effective steps
to implement the 2007 Tripartite Agreement. The most
immediate steps to be undertaken concerned the review of
the Constitution to bring it into compliance with the provisions
of Convention No. 87 and the issuing of recommendations
to the relevant authorities to eliminate discrepancies
in both law and practice with Conventions Nos
87 and 98, taking into account the comments of the ILO
supervisory bodies. They asked to be kept informed of the
progress of tripartite dialogue in the assessment of the
Public Sector Bill and requested that the Government be
asked to report back to the Governing Body in November
2009. They called for the repeal of the Terrorism Act. The
Office had to offer technical cooperation to the Government
of Swaziland in order to bring the Constitution as
well as the Public Order Act of 1963, the Decree of 1973
and the Industrial Relations Act into line with ILO Conventions.
Furthermore, they called on the Government to
immediately and unconditionally release Mario Masuku
and Thulani Maseko. The Government also needed to end
the brutality directed against trade unionists and other
human rights defenders, stop the violent suppression of
peaceful rallies and civic actions, respect human rights
and immediately act to end the impunity of those responsible
for anti-union repression. In view of the long history
of violations and the current situation, they called for this
case to be included in a special paragraph. As all trade
unionists from Swaziland present at the Conference risked
becoming victims of persecution when returning to the
country, they asked the Office to remain vigilant and to
undertake measures to assure their safety and ongoing
protection.
The Employer members noted the consensus within the
Committee that there was a lack of social dialogue. In
paragraph 62 of its report, the Committee of Experts had
highlighted the need for technical assistance in this case.
It was clear that technical assistance would be valuable,
considering that the case had a long history with no progress.
It was evident that since the first discussion of this
case in 1996, the Government knew what needed to be
done, yet had not done it. The Employer members agreed
with the proposal by the Worker members that the conclusions
of this case needed to be included in a special
paragraph in order to highlight the need for the Government
to finally implement Convention No. 87, including
adhering to freedom of speech and social dialogue and
preventing police repression. The Government needed
16 Part Two/68
enact to promptly the necessary legislation to adequately
address the issues identified by the Committee of Experts.
Conclusions
The Committee took note of the statement made by the
Government representative and the debate that took place
thereafter.
The Committee observed that the comments of the Committee
of Experts had referred for many years to the need to
repeal the Decree/State of Emergency Proclamation and its
implementing regulations and the Public Order Act, as well
as to restrictions to the right to organize of prison staff and
domestic workers, the right of workers’ organizations to
elect their officers freely and the right to organize their activities
and programmes of action.
The Committee took note of the Government’s detailed
reply in relation to the allegations of arrest and detention of
the Secretary-General of the Swaziland Federation of Trade
Unions (SFTU). While the Government acknowledged that
the police had called Mr Sithole to headquarters for questioning
in relation to serious insults allegedly made in respect
of the King in his presence, the Government representative
insisted that this had nothing to do with his trade union
activity and he had not been detained any further. The
Government representative had provided further information
in relation to the other allegations and, while admitting
that some elements were true, he had stressed that there
were also serious inaccuracies. He had also indicated that
the request for change of the national Constitution had already
been tabled with the High-level Steering Committee
on Social Dialogue, as requested by the 2006 ILO high-level
mission. He had further indicated that a draft law within the
framework of the Labour Advisory Board amended some
provisions objected to by the Committee of Experts and
would be put before Parliament this year. Finally, the Government
representative stressed that workers rights were
fully guaranteed by the 2005 Constitution.
The Committee noted with concern the Government’s reply
to the allegations submitted by the International Trade
Union Confederation (ITUC) to the Committee of Experts
concerning the acts of violence carried out by the security
forces and the detention of workers for exercising their right
to strike, and felt itself obliged to recall the importance it
attached to the full respect of basic civil liberties such as
freedom of expression, of assembly and of the press. The
Committee stressed that it was the responsibility of governments
to ensure respect for the principle according to which
the trade union movement can only develop in a climate free
from violence, threat or fear and called upon the Government
to ensure the release of any persons being detained for
having exercised their civil liberties.
The Committee regretted that, although the Government
had benefited from ILO technical assistance for some time
now, including through a high-level mission, the legislative
amendments requested for many years have yet to be
adopted. The Committee urged the Government to take the
necessary measures so that the amendments requested by
the Committee of Experts were finally adopted.
Noting with concern that the Special Consultative Tripartite
Subcommittee of the High-level Steering Committee on
Social Dialogue had not met for several months, the Committee,
stressing the importance of social dialogue, particularly
in these times of economic crisis, urged the Government
to reactivate the Subcommittee as a matter of urgency.
It further highlighted its outstanding calls to the Government
to repeal the 1973 Decree, to amend the 1963 Public
Order Act, as well as the Industrial Relations Act, and expressed
the firm hope that meaningful and expedited progress
would be made in the review of the Constitution before
the Steering Committee on Social Dialogue, as well as in
respect of other contested legislation and bills. The Committee
offered the continuing technical assistance of the Office
in regard to all the above matters. The Committee requested
the Government to transmit a detailed report to the Committee
of Experts for its meeting this year containing a timeline
for resolution of all the pending questions. The Committee
expressed the firm hope that it would be in a position to
note tangible progress next year.
The Committee decided to include its conclusions in a special
paragraph of its report.
Document No. 264
ILC, 99th Session, 2010, Report of the Committee on the
Application of Standards, pp. 16 Part II/42-16 Part II/48
(Swaziland)
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Swaziland (ratification: 1978)
16 Part II/42
SWAZILAND (ratification: 1978)
A Government representative, Minister of Labour and
Social Security, said that his Government attached great
importance to the work of the Conference Committee and
the goals of the ILO and undertook to continue observing
the letter and spirit of ratified ILO Conventions including
Convention No. 87. He would seek to demonstrate that
Swaziland had achieved significant progress towards
compliance with international labour standards.
With respect to the Industrial Relations Act (IRA), the
Government had published the Industrial Relations
(Amendment) Bill and had tabled it in Parliament where it
was currently under consideration. The Bill addressed
several issues raised by the ILO high-level mission as
well as the Committee in that it: (1) granted the right to
organize to domestic workers by broadening the definition
of “undertaking” (clause 2(1)(b)); (2) provided for
the establishment of a minimum service in the event of
strikes in sanitary services; (3) removed the statutory restrictions
relating to the nomination of candidates and
eligibility for union office (clause 3); (4) shortened the
dispute settlement procedures (clauses 5 and 6); and
(5) ensured that the Conciliation, Mediation and Arbitration
Commission (CMAC) would only supervise strike
ballots at the union’s request (clause 6(b)).
With regard to the status of social dialogue, the Government
representative announced that the National Steering
Committee on Social Dialogue had been appointed
and comprised the Minister of Labour and Social Security
as the Chairperson, representatives from the two workers’
and two employers’ federations, as well as the Principal
Secretary, Labour Commissioner and Legal Advisor of
the Ministry. The Committee was fully operational and
had agreed to a schedule of monthly meetings for 2010. In
addition, the discussions on the Decent Work Country
Programme had been concluded and the social partners
intended to sign it shortly.
The Government representative vehemently denied the
alleged indiscriminate use of the Public Order Act of
1963 to repress lawful and peaceful strikes. The Act did
not apply to meetings of lawfully registered trade unions.
In the event, however, that a meeting turned violent, police
might intervene to maintain law and order. Its presence
was essential to protect both the rights of persons
participating in strike action and of innocent citizens. He
also drew the Committee’s attention to the appointment in
September 2009 of the members of the Commission on
Human Rights and Public Administration. This autonomous
body, the mandate of which covered human rights
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Swaziland (ratification: 1978)
16 Part II/43
including workers’ rights, had commenced its work. With
reference to collective bargaining for prison staff, the
Government had taken the decision to amend the Prisons’
Act in line with the recommendation of the ILO highlevel
mission.
As to the practical application of section 40 of the IRA
concerning civil and criminal liability of workers and
their organizations, the Government representative believed
that the provision did not impair the right to strike.
However, strike and protest action became increasingly
violent and destructive to private property. The Government
not only had to ensure that workers freely enjoyed
the right to strike but also to protect the rights of others.
The worker groups should thus ensure that only their
members took part in lawful strikes and instil a sense of
responsibility in them. Regarding the repeal of the 1973
Decree/State of Emergency Proclamation (1973 Decree),
he reiterated that the 2005 Constitution was the supreme
law of the country. Finally, the Government representative
reaffirmed that Swaziland was committed to complying
with international labour standards and would continue
to respect its reporting obligations.
The Worker members stated that Swaziland had a long
tradition of trade union repression and that the case was
therefore regularly discussed by the Committee. The previous
year it had even been mentioned in a special paragraph.
The facts were unfortunately familiar and, even if
the Government’s replies varied slightly, they did not
contain much promise of improvement.
With regard to the facts of the matter, it was worth recalling
that they involved acts of violence and brutality by
the police against trade unionists and union demonstrations,
threats of dismissal of union members who had
gone on strike in the textiles sector and the summonsing
and arrest of union leaders such as the General Secretary
of the Swaziland Federation of Trade Unions (SFTU).
Only recently, that very week, private houses had been
raided and bombed.
In terms of legislation, the Committee had found on
every occasion that it had discussed the case that the Government
had not adopted the amendments that had been
called for years, despite the technical assistance it had
received from the ILO and the visit of a high-level mission
in 2007. They reminded the Committee that the IRA
needed to be amended, specifically on the following
points: control over the appointment of union officials,
supervision of votes on strike action, the ban on strikes in
the health sector and the requirement that a trade union’s
membership comprise 50 per cent of the workers for it to
be recognized. The Government had only very recently
submitted to Parliament the amendments to the IRA to
which the Labour Advisory Board (LAB) had agreed
upon in 2009. There was therefore no guarantee that the
new Act would be adopted and implemented in the near
future. There were, moreover, several other laws that directly
or indirectly undermined trade union activities: the
1973 Decree, which had supposedly been repealed by the
new Constitution, which nevertheless contained the same
provisions; the 1963 Public Order Act which had been
used to suppress lawful strikes and peaceful demonstrations;
the Police Act which had been used to arrest union
officials and confiscate union property; the Prisons’ Act
prohibiting prison staff from forming trade unions; and,
above all, the Suppression of Terrorism Act which served
to justify measures taken against union activities.
Social dialogue was also a source of concern. The Government
spoke of a high-level commission on social dialogue,
but if the commission had ever existed it had been
dissolved in 2009 and replaced by a much lower level
committee composed of the social partners and only ministers
of labour and charged with social affairs, which had
not met for months. This wordless social dialogue illustrated
the Government’s approach to the subject, which
involved announcing reforms and establishing committees
without any actually happening in practice.
The Employer members recalled that this case had a
long and disappointing history of failure to comply with
the Convention. It had been the subject of 17 observations
by the Committee of Experts and was being examined by
the Conference Committee for the ninth time. With reference
to their earlier intervention during the general discussion,
the Employer members wished to emphasize
that, in their view, Convention No. 87 neither provided
for the right to strike nor guarantee certain forms of strike
action. They could not therefore agree with the comments
of the Committee of Experts in respect of recognizing the
right to strike in sanitary services, ensuring that penalties
imposed on strikers did not impair the right to strike and
guaranteeing that workers might engage in sympathy
strikes without incurring sanctions. They also noted that it
would have been useful for the Committee’s discussion to
be able to consult the 2009 International Trade Union
Confederation (ITUC) comments concerning the alleged
detention of the General Secretary of the SFTU and the
Government’s reply.
The Employer members believed that there remained
two fundamental issues in this case: (1) the continuing
failure to adopt national legislation guaranteeing freedom
of association and the protection of the right to organize;
and (2) the failure to engage effectively in social dialogue.
Regarding the first issue, the stark fact was that, more
than 30 years after the ratification of the Convention and
despite last year’s mention of the case in a special paragraph
of the Committee’s report and ILO technical assistance,
including the 2006 high-level mission, the Industrial
Relations (Amendment) Bill had not yet been
adopted. It was therefore difficult to remain anything
other than highly sceptical that the legislation would finally
be amended. Recalling that through ratification of
the Convention the Government had committed itself to
giving effect to Articles 2, 8 and 11, the Employer members
stated that the Government should continue to avail
itself of ILO technical assistance, in order to address as a
matter of urgency all pending legislative issues mentioned
in the observation of the Committee of Experts.
With regard to the second issue, noting that the Special
Consultative Tripartite Subcommittee of the High-level
Steering Committee on Social Dialogue had not met for
several months and in the absence of any information
concerning a new lower level committee, the Employer
members urged the Government to reinvigorate all efforts
to engage in social dialogue without delay. The failure to
do so up to now gave rise to serious doubts about the
Government’s will to comply with the requirements of the
Convention, given the allegations of the continuing violations
in this case of repression of freedom of speech, police
brutality and oppression. When considering the report
of the Committee of Experts, it was challenging to accept
that there had been genuine progress. The Employer
members therefore respectfully invited the Government to
provide today: (1) a clear and unequivocal time frame for
the adoption of national legislation giving effect to the
Convention, in particular Articles 2, 8 and 11; and (2) a
clear and unequivocal commitment to engage effectively
in social dialogue.
The Worker member of Swaziland affirmed that the denial
of freedom of association had reached deplorable
levels in Swaziland and that the atmosphere had become
so threatening and oppressive that workers died in their
quest to associate and assemble freely. The lack of social
dialogue was one of the key contributing factors to the
social, political and economic challenges faced by the
country. Despite the promise made by the Government at
the 2009 discussion to convene the High-level Social DiaFreedom
of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Swaziland (ratification: 1978)
16 Part II/44
logue Committee to be chaired by the Deputy Prime Minister,
the Government had done the opposite by dissolving
the Committee in December 2009 and replacing it with a
low-level committee to be chaired by the Minister of Labour
and Social Security. Unlike the previous body, the
current National Social Dialogue Committee had no
budget, as the social partners were expected to bear the
costs, and had not yet discussed any matter of importance,
nor was any cluster committee in place. The arrangements
were clearly intended to impede the Committee’s work,
given the Government’s preference for a so-called smart
partnership dialogue process which was not representative,
but was fully funded. The above clearly demonstrated
that the Government did not support social dialogue.
In relation to the amendment or repeal of inconsistent
legislation, the Worker member indicated that the 2005
Constitution could not revoke the effects of the 1973 Decree,
since the Constitution only nullified legislation that
was inconsistent with its provisions. The Decree therefore
clearly remained in force. Peaceful trade union protest
actions continued to be violently disrupted under the guise
of enforcing the Public Order Act or the Suppression of
Terrorism Act. Unions remained civilly and criminally
liable for any acts occurring during protest action under
section 40 of the IRA. In this context, he contested that
there had been any acts of violence initiated by workers
during protest action. The Government had only submitted
the Industrial Relations (Amendment) Bill to the LAB
in May 2010, although the tripartite drafting process had
been completed before June 2009, which proved the Government’s
claims of progress misleading. Moreover, he
was not aware of any proceedings instituted to amend the
Prisons’ Act to grant correctional service employees the
right to organize.
The Suppression of Terrorism Act was used to repress
voices of dissent of trade unions and political parties. It
defined the term “terrorist act” as any act or action that
compelled the Government to do or refrain from doing
something. Given the monitoring role of trade unions as
to whether government actions were in the interest of
workers, trade union actions could easily fall under this
broad definition which covered both peaceful and violent
means. The Act was used to suppress union activities under
the guise of suppressing terror. The Workers’ Day
celebration on 1 May 2010 had been violently disrupted
involving physical searches, confiscations and arrests. Mr
Sipho Jele was charged under the Suppression of Terrorism
Act and, after three days of custody, was reported to
have hung himself in prison. Contrary to police instructions
to bury him on the following day, the family had
requested an independent autopsy. His burial on 15 May
was brought to a halt by 400 armed police and at the funeral
on 21 May the leader of the Peoples United Democratic
Movement (PUDEMO) had been arrested. The Government
had since instituted an inquest into the death of
Mr Jele, which was, however, limited to the causes of
death and did not cover the police conduct on 1 May. In
November 2009, police officers had detained organizers
of the Swaziland Transport and Allied Workers Union,
confiscated membership forms and interrogated all union
officers on the grounds of orders to prevent the unionization
of public transport workers. The Worker member
concluded that Swaziland had turned into a police State.
The Government should be encouraged to remove urgently
all obstacles to fundamental rights and freedoms.
An Employer member of Swaziland commended the
Government for the significant progress made so far on
the legislative amendments. The Industrial Relations
(Amendment) Bill sought to recognize the right to organize
of domestic workers and the right to strike in sanitary
services, remove the statutory restrictions on the nomination
of candidates and eligibility for union office, ensure
that the CMAC could not supervise strike ballots unless
requested to do so and shorten dispute settlement procedures.
Although practical implementation was still a challenge,
she was optimistic that the country had taken a step
in the right direction.
It was regrettable that once again the application of this
fundamental Convention by Swaziland was being discussed
in the Committee. The issues raised in this case
could have been easily resolved if the Government had
been genuinely committed to the process of social dialogue.
The Swaziland employers strongly believed in social
dialogue, in particular in light of the difficult economic
situation of the country, and appreciated the establishment
of the National Steering Committee on Social
Dialogue, which had scheduled monthly meetings to address
key issues of concern to the social partners. She
expressed disappointment at the slow pace of the social
dialogue process and indicated that this issue had repeatedly
been brought to the attention of the relevant authorities.
While the Ministry of Labour and Social Security
had displayed good will, this was not evident in other
parts of the Government. As long as both social partners
and the Government were committed to the process of
social dialogue, progress on all pending issues of the case
could be achieved. She therefore strongly recommended
that an effective social dialogue framework be put in
place as a matter of priority and looked forward to the
non-inclusion of Swaziland in a special paragraph in the
Committee’s report.
Another Employer member of Swaziland saw a solution
only in the process of constructive social dialogue and
was committed to persuading the Government to deal
with all the issues raised by the Committee. Requiring a
stable and free political environment in which enterprises
could operate, his organization was not involved in politics
and aimed to undertake a moderating role. Meetings
of the Steering Committee on Social Dialogue had commenced
and the social partners had vowed to make it a
success and he therefore emphasized that the case should
not be included in a special paragraph of the Committee’s
report.
The Government member of Norway, speaking on behalf of
the Government members of Denmark, Finland, Iceland, Norway
and Sweden, noted with growing concern the continued
negative developments of the human rights situation
in Swaziland in general and the lack of compliance with
the Convention in particular. She was further deeply concerned
at the aggravated situation in relation to political
opposition and trade unions in Swaziland, including freedom
of expression, as well as the right to organize. Noting
that the ITUC had reported “serious acts of violence and
brutality of the security forces against trade union activities
and union leaders in general”, she deplored the death
in custody of PUDEMO member Sipho Jele, who had
been arrested on Workers’ Day.
The Committee of Experts had once again highlighted
several pieces of legislation because of their nonconformity
with the Convention. While considering the
steps taken to amend the legislation, she urged the Government
to ensure that its legislation be fully compliant
with the Convention. The human rights situation in the
country, including the right of workers to organize and to
arrange and participate in legal strikes in accordance with
Convention No.87, was a long-lasting case and had been
discussed in this Committee several times. She therefore
urged the Government to continue to benefit from the
technical assistance of the ILO in order to bring the legislation
into compliance with Convention No. 87 and to
ensure the effective enforcement of the legislation. She
further urged the Government to provide detailed information
regarding the reported acts of violence against
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Swaziland (ratification: 1978)
16 Part II/45
trade union activists and those participating in lawful and
peaceful strikes.
The Worker member of South Africa regretted that Swaziland
had become southern Africa’s tragedy. South African
workers had worked closely with Swazi trade unions
in support of the struggles for workers’ rights and democracy.
It had become clear that there could be no meaningful
freedom of association, social dialogue or improvement
in the lives of workers without democracy. In the
region, patience with the ever-deteriorating conditions in
Swaziland was growing thinner and far more drastic steps
were required to turn things around. The mysterious death
of Mr Sipho Jele and the intensified ruthless persecution
of workers and political activists pointed to a regime determined
to intensify the harsh treatment of its people.
The King’s order for the strangling of opposition, targeting
particularly activists of the Swaziland Youth Congress
(SWAYOCO) and the PUDEMO, with its President
Mario Masuku, had laid the basis for the current unacceptable
levels of worker persecution. The Suppression of
Terrorism Act, the Public Service Bill and a series of
other laws confirmed the increased militarization of society,
further limiting and worsening the possibilities for
freedom of association. Army personnel were all around
intimidating people. The persecution of political and
workers’ activists was a systematic attack on those people
demanding democracy and social justice. The Swazi State
had never felt as threatened and desperate. This was manifested
in the increased attacks on workers and all those
fighting for democracy and was similar to the tactics used
by South Africa’s Apartheid regime, which had also
bombed and raided activists’ homes. As Swaziland was
permanently represented on the ILO’s list of violators of
Convention No. 87, decisive steps had to be taken to
achieve the desired impact. She therefore: supported the
call for an ILO high-level delegation whose findings
should form the concrete basis for real progress; called for
meaningful, genuine and lasting social dialogue that
would help Swaziland out of the current quagmire; and
also called for an independent inquiry into the death of Mr
Sipho Jele and the behaviour of the Swazi security forces
in relation to workers’ activities.
The Worker member of Ghana observed that the environment
for workers to exercise the right of freedom of
association and protection of the right to organize, as enshrined
in Convention No. 87, remained very bad. The
Government had made little progress in ensuring and
guaranteeing workers’ rights in general despite, as observed
by the Committee in 2009, the country benefiting
from ILO technical assistance and high-level missions.
This was compounded by the absence of a true pluralistic
democratic environment in Swaziland and the suppression
of freedom of choice. The repeal of the draconian 1973
Decree through the enactment of a new Constitution in
2005 had merely maintained the political status quo in
force since 1973, giving executive, legislative and judicial
powers to the King and setting a ban on political parties
and meetings, including union meetings, as demonstrated
in the brutal disruptions of the 2010 May Day celebrations
by state security. Intimidation, arbitrary arrests and
brutality against trade union activists had continued with
impunity. Of particular concern was the use of state security
to intimidate and harass workers and trade union
leaders, which had instilled awe and insecurity in workers
and the wider society and undermined the very essence of
freedom of association.
The enactment of the Suppression of Terrorism Act had
further worsened the environment for exercising the rights
enshrined in the Convention. Based on this Act, the Government
had started categorizing actions of workers, trade
union associations, political activists and civil society at
large as acts of terrorism. Such criminalization of trade
union and workers’ activities was not acceptable as it violated
fundamental workers’ rights and to the contrary of
the Government’s assertions, social dialogue in its true
sense did not exist.
There could be no meaningful progress in respect of
workers’ rights in particular as they related to Convention
No. 87 as long as the Government denied its citizens, including
the workers, a democratic environment and space
and continued to apply repressive legislation. The recent
amendment of some pieces of legislation, as brought forward
by the Government, was not enough, but merely
cosmetic, as the practice on the ground showed that little
or no improvement at all had been achieved.
Taking into account that freedom of association was
particularly important to attain the ILO’s objectives, he
strongly urged the Government to work with the social
partners and other stakeholders swiftly towards removing
all repressive pieces of legislation, including the Suppression
of Terrorism Act, and to create a true democratic
environment enabling the exercise of the right to freedom
of association.
The Government member of Mozambique, speaking on
behalf of the Government members of the Committee,
Member States of the Southern African Development
Community (SADC), endorsed the report and Swaziland’s
commitment to apply and respect all ratified ILO
Conventions, and notably Convention No. 87. Considering
the observations of the Committee of Experts, the
SADC countries felt that the steps currently being taken,
to which the Employer members had referred, were pointing
in the right direction. The meeting of Ministers of
Labour and the social partners of the SADC countries had
welcomed the fact that all the ILO’s fundamental Conventions
had now been ratified. The members of the SADC
were endeavouring to ensure the implementation of the
Conventions.
The Worker member of the United States emphasized
that, since 1997, Swaziland had been reviewed in relation
to Convention No. 87 on numerous occasions and the case
had been included in a special paragraph of the Committee’s
report on several occasions, including in 2009. The
Committee of Experts had explicitly called for authentic
results to be produced at the 2010 session of the Conference
Committee, in particular: (1) abrogating the 1973
Decree, which had been used to destroy the exercise of
the right of workers to freedom of association; (2) amending
the 1963 Public Order Act to avoid it being used to
proscribe peaceful strikes; (3) amending the Prisons’ Act
to grant trade union rights to prison staff; and (4) overhauling
those civil and criminal liability provisions of the
IRA imposed on trade union leaders for having exercised
their right to coordinate peaceful strike action. It was unfortunate
that in this case the Employer members did not
recognize the irrefutable jurisprudence of the ILO supervisory
bodies stating that the right to strike was also at the
heart of Convention No. 87.
In 2009, the Committee had called upon the Government
to “transmit a detailed report to the Committee of
Experts” for its 2009 session, containing a “time-line for
resolution” of all pending questions. Since the Government
had not implemented any of the requests made and
even the Bill to amend parts of the IRA remained a Bill,
the Government had once again acted in contempt of the
ILO supervisory system’s conclusions. The Government
continued to use devices such as the 1973 Decree and the
Public Order Act to victimize the SFTU through police
harassment and arrests, as well as to justify death threats
to Mr Jan Sithole’s family. These devices had also been
used to bust legitimate trade union activity in Swaziland’s
critical textile sector, which was dominated by Taiwanese
companies. In March 2008, the police had conducted a
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Swaziland (ratification: 1978)
16 Part II/46
crackdown on a strike of thousands of textile workers
with tear gas and gunshots.
This was most regrettable as the Government, even in
the midst of the great global recession, could easily start
overhauling the legislative and executive measures used
to justify the arrest, beating, imprisonment and terrorization
of Swazi trade unionists, especially in the textile and
apparel sectors. It could also easily start complying with
all requests made by the ILO supervisory bodies over the
last decade. Compliance would be beneficial since trade
and market access policies implemented by the United
States, such as the African Growth and Opportunity Act,
rewarded the observance of core labour standards, including
freedom of association. While hoping that the Government
would take serious steps to advance both the
principle of decent work and those principles enshrined in
Convention No. 87, he requested that the conclusions of
the Committee be included in a special paragraph of the
Committee’s report and that a high-level tripartite mission
be conducted.
The Worker member of the United Kingdom had been
surprised when, in 2009, he had heard the Employer
members’ recollection that since 1997 the Government
representative had repeatedly stated that legislation was
being changed, the situation was improving and Swaziland
would soon be compliant. The only change, however,
had been a change for the worse, as shown by the
adoption of the new law to remove the right to bail for
anyone arrested for participating in protests. Therefore,
the Government’s statement had to be taken with a high
degree of scepticism, as could be seen when the current
discussion was put in a historical context. Swaziland had
gained independence and, as was hoped, genuine freedom
for its people in 1968 with the establishment of a constitutional
monarchy. However, in 1973 the then governing
party had effectively ceded absolute power back to the
King and established a long-lasting state of emergency
which, despite the hope invested in the 2005 Constitution,
effectively remained in place today. Swaziland had become
a member of the ILO in 1975 and had ratified numerous
Conventions without, however, complying with
the requirements of several of them, in particular Convention
No. 87 and the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98).
With political parties banned, trade unions had continued
to play an essential role in representing the interests
of ordinary Swazi citizens. Recalling the repressions
enumerated by other speakers, he added that recently suspicious
burglaries and thefts of computer equipment from
union leaders’ homes and a bomb attack on the house of
Mr Alex Langwenya had taken place. While the culprits
were unknown, the fact that the police had arrived minutes
after the bomb attack and arrested Mr Langwenya
himself was not very reassuring. One of the most recent
violations had taken place on May Day 2010 when a trade
unions festivity at the Salesian sports ground had been
raided by the police based on the Suppression of Terrorism
Act. Searching for people wearing T-shirts of banned
organizations, many gatherers, including guest speakers,
had been arrested by the police, partly even violently. The
head of the Swazi Consumers’ Association had been arrested
on the ground that he was not a worker. Most of
those arrested had later been released, but nothing had
been heard of union member Sipho Jele, whose family
had been interrogated for four hours without being told of
his whereabouts. On 4 May 2010 his body had been released
and it had been stated that he had hung himself
from the rafters of the prison toilet and that he had had to
be buried immediately. Very few people believed that he
had killed himself. In light of the comments of the Committee
of Experts, and taking into consideration the statements
made by the Government representative, he emphasized
that all those, like Mr Sipho Jele, who were fighting
in Swaziland for their most basic rights should see that the
ILO could take action that would lead to real change.
The Government member of South Africa aligned himself
with the statement made by the Government member
of Mozambique, who had spoken on behalf of the Government
members of the SADC countries, and expressed
his condolences to Mr Jele’s family. He welcomed the
report of the Committee of Experts and offered his country’s
assistance in promoting social dialogue in Swaziland,
as dialogue had been key to his own country’s success.
He further welcomed the Government’s commitment
to working with the Committee and urged the ILO
to support the promotion of meaningful and sustainable
social dialogue in Swaziland.
The Worker member of Germany, speaking on behalf of
the European trade unions, observed that Swaziland had
been in a state of emergency for 35 years. All powers
were vested in the King, and opposition parties and gatherings
were prohibited. The population, of which 70 per
cent lived below the poverty line, suffered most. The violation
of trade union rights in the country had been included
in a special paragraph of the Committee’s 2009
report. Despite the Government’s promises, the situation
of trade unionists and worker representatives had not at
all improved. Trade union rights had been curtailed and
trade unionists engaged in the promotion of democracy
and pluralism were persecuted, threatened and often had
to pay for their commitment with their lives.
The Government had established national committees
containing the word “dialogue” in their title and, according
to the Government, “partnership” also seemed to be a
concept with which the Government wanted to face national
challenges. These were, however, deliberate deceptions
and abuses of terms which were normally used to
describe an equal exchange. However, the Government
still took decisions unilaterally in its own best interests
and to sustain its power, but not for the benefit of the
people. This was exemplified, inter alia, with the Highlevel
Steering Committee on Social Dialogue which, despite
its nice name was not, however, linked to social dialogue,
notwithstanding the Government’s assurances that
social dialogue was welcome. Social dialogue in Swaziland
only meant one thing: the Government talked, if
ever, with employers’ and workers’ representatives and at
the end acted as it pleased. This was not social dialogue,
but an anti social monologue.
Social dialogue meant that workers, employers and
government representatives communicated in a way that
enabled them to know and understand the respective positions
and to reach agreed conclusions. Only on such a
basis could a country’s social and economic progress be
promoted. Social dialogue was also key for reducing gaps
between laws and their implementation. He was very concerned
at the fact that, despite the demands of the international
community based on the ratification of the Convention
more than 30 years ago, the Government had for
years been violating Convention No. 87 and had not
therefore been in a position to close the big gaps that existed
in national laws. The Committee of Experts had
noted that the High-level Steering Committee on Social
Dialogue had not met for months. He therefore urged the
Government to: (1) include the social partners in all decisions
in regard to adjusting the Constitution and national
laws to the requirements of Convention No. 87; (2) be
open to social dialogue not only euphemistically on paper,
but to really end its anti-social monologue; and (3) align
the legal basis and its practical action with the requirements
of Convention No. 87.
The Government member of Zambia aligned his Government
with the statement made by the Government
member of Mozambique, who had spoken on behalf of
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Swaziland (ratification: 1978)
16 Part II/47
the Government members of the SADC countries. He
expressed appreciation at the comprehensive statement
made and the measures taken by the Government of Swaziland
in an effort to respond to the recommendations of
the Committee of Experts. He considered that the ratification
of over 30 Conventions, including all eight fundamental
Conventions, was also a positive and commendable
action. He also expressed support for the legal reforms
undertaken by the Government.
Another Government representative, Minister of Justice
and Constitutional Affairs, recalled that the current Government
had only come into office in 2008 and that one of
its priorities was to align national laws with the Constitution.
Thirty bills were being drafted by the Attorney-
General, but this task was challenged by the limited staff
of his office. The Commission on Human Rights and Public
Administration, appointed in September 2009, would
receive reports on human rights issues from all citizens.
The amendment to the Prisons’ Act was an executive decision
to be taken by the Minister of Justice and Constitutional
Affairs. Once the ongoing drafting process was
complete, the Bill would be forwarded to the Minister for
Labour and Social Security, for submission to the Labour
Advisory Board (LAB.) The workers’ allegation that
nothing was being done with regard to the Prisons’ Act
was therefore misleading. Furthermore, the unions had
met with the police prior to the May Day celebrations to
discuss security arrangements. The police had not harassed
workers, but had attended the meeting to enforce
the law in relation to certain individuals who were violating
it. The Government regretted the death in custody of
Mr Sipho Jele and had immediately initiated a public investigation
led by a Principal Magistrate. The Government
had nothing to hide on this matter and therefore a
family doctor had been allowed to undertake the postmortem,
together with a government pathologist, and a
lawyer appointed by the family was attending the investigation
to test the evidence. With regard to the previously
alleged murder of a worker, he emphasized that the Government
had been cleared of all allegations following a
high-level mission.
When the 2009 Public Service Bill had been submitted
to Parliament, workers had lobbied for the Bill to be referred
to the LAB, and the recommendations of the LAB
had subsequently been considered by the Cabinet. In case
of further issues pertaining to the Bill, he urged the unions
to lobby Parliament as the Bill was now before Parliament.
The Government contested the statement that it used the
Suppression of Terrorism Act indiscriminately to intimidate
workers. The drafting of the Act was in line with UN
Security Council Resolution 1373 (2001) and the Model
Legislative Provisions on Measures to Combat Terrorism
of the Commonwealth Secretariat and had been inspired
by the United Nations Office on Drugs and Crime. According
to its objectives, the Act was used to suppress all
acts of terrorism and all individuals contravening the Act
were arrested. In conclusion, he urged the Committee to
take note of the significant progress made by the Government
in responding to the issues raised and therefore
insisted that Swaziland should be removed from the special
paragraph in the Committee’s report.
The Employer members specified that, as their position
was clear, they would not further address the comments of
the Committee of Experts concerning the right to strike
and the requirements of the Convention concerning freedom
of association and the right to organize. As in the
past, it was not possible to assess the technical information
provided by the Government to this Committee. The
Government’s assertion that significant progress had been
made was disputable. The Labour Bill had been tabled
before Parliament, but the request for a specific time
frame for its adoption had not clearly been answered by
the Government. The Employer members expressed their
concern at the Minister of Labour’s lack of staff. With
regard to social dialogue, there had been no commitment
to hold meetings of the High-Level Steering Committee,
and the Government’s indication that this Committee was
fully operational was disputable. The Government’s only
express commitment on these issues had been to continue
to provide further reports. The Ministry of Labour required
support to ensure that national legislation was
adopted in compliance with the Convention, that resources
to support social dialogue were made available
and that the Government provided reports on the real
situation in the country. Thirty years after Swaziland’s
ratification of the Convention, scepticism remained.
Unless positive measures were taken to comply with the
Convention, this case risked remaining on the list of cases
discussed by the Committee. The Employer members
expressed support for the legislative steps that had been
taken thus far. This case merited insertion in a special
paragraph in the General Report. A high-level tripartite
technical mission should be sent to Swaziland to inquire
into the failure to adopt legislation to comply with the
Convention, and to assess the current barriers to social
dialogue.
The Worker members indicated that the situation in
Swaziland had been a matter of concern for many years
for a number of reasons: the harassment, persecution and
murder of trade unionists; the numerous laws that were
still contrary to the fundamental provisions of the Convention;
and the lack of will by the Government to restore
a climate of non-violence and full democracy. The Government
should therefore cease all violent acts against
trade unionists, all repression of trade union activities and
any denial of human rights. They also called on the Government
to commission an independent inquiry into the
events of 1 May this year. The Government should finally
complete the legislative reforms that had been recommended
by the Committee of Experts, with particular reference
to the amendment of the Industrial Relations Act
and the 1963 Public Order Act, and to repeal the Decree/
State of Emergency Proclamation and the Suppression
of Terrorism Act. The Worker members insisted in
particular that the Government finally keep its promises
and create the conditions for meaningful and lasting social
dialogue. They proposed for that purpose the organization
of a high-level tripartite mission and called for the Committee’s
conclusions to be placed in a special paragraph of
its report.
Conclusions
The Committee took note of the statement made by the
Government representative and the discussion that took
place thereafter. The Committee observed that the comments
of the Committee of Experts had referred for many
years to the need to amend the provisions of the legislation
containing restrictions on the right to organize of prison
staff and domestic workers, the right of workers’ organizations
to elect their officers freely and to organize their activities
and programmes of action, as well as the need to repeal
the 1973 Decree/State of Emergency Proclamation and its
implementing regulations and to amend the 1963 Public
Order Act, which could be used to repress lawful and peaceful
strikes.
The Committee noted the information provided by the
Government representative that an Industrial Relations
(Amendment) Bill, which amended a number of provisions
objected to by the Committee of Experts, was now before
Parliament under consideration by the relevant committee.
The Government representative had indicated that the tripartite
National Steering Committee on Social Dialogue for
Swaziland had been established and a schedule of monthly
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Turkey (ratification: 1993)
16 Part II/48
meetings had been agreed. He had added that a Commission
on Human Rights and Public Administration had been appointed
in September 2009 to further strengthen the protection
of human rights, including workers’ rights. Finally, the
Government representative had repeated the previous
statements made on the 1973 Decree/State of Emergency
Proclamation and its implementing regulations and on the
1963 Public Order Act.
The Committee recalled that this case had been discussed
on numerous occasions over the past ten years and that last
year it had decided to include its conclusions in a special
paragraph of its report. The Committee noted with concern
the continuing allegations relating to acts of brutality by the
security forces against peaceful demonstrations, threats of
dismissal against trade unionists and the repeated arrests of
union leaders, and firmly recalled the importance it attached
to the full respect of basic civil liberties such as freedom of
expression, of assembly and of the press and the intrinsic
link between these freedoms, freedom of association and
democracy. The Committee once again stressed that it was
the responsibility of governments to ensure respect for the
principle according to which the trade union movement can
only develop in a climate free from violence, threats or fear
and called upon the Government to ensure the release of any
persons being detained for having exercised their civil liberties.
The Committee expressed the firm hope that the Industrial
Relations (Amendment) Bill would be adopted in the
very near future and that its provisions would be in full conformity
with the Convention. Recalling that it was the Government’s
responsibility to ensure an environment of credibility,
the Committee urged the Government to take concrete
and definitive measures without delay to effectively
repeal the 1973 Decree and to ensure the amendment of the
1963 Public Order Act in order to fully comply with the requirements
of Convention No. 87 so that they could no
longer be used to prevent legitimate and peaceful trade union
activities. The Committee urged the Government to accept
a high-level tripartite mission in order to assist the
Government in bringing the legislation into full conformity
with Convention No. 87, to enquire into the May Day 2010
incident and to facilitate the promotion of meaningful and
effective social dialogue in the country.
The Committee expressed the firm hope that the National
Steering Committee on Social Dialogue for Swaziland would
be immediately convened in order to achieve meaningful and
expedited progress with respect to the issues raised. The
Committee requested the Government to transmit detailed
information in its next report due to the Committee of Experts,
including on the progress made in the adoption of the
Industrial Relations (Amendment) Act and the concrete
steps taken on the pending issues. The Committee expressed
the firm hope that it would be in a position to note tangible
progress next year.
The Committee decided to include its conclusions in a special
paragraph of its report.
obtained at the same time and in the same branch of
work” is repealed.
Document No. 265
ILC, 69th Session, 1983, Report of the Committee on
the Application of Standards, paras 61-62
ì International Labour Conference <
^ j Provisional Record
Sixty-ninth Session, Geneva, 1983 '
Third Item on the Agenda : Infonnation and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Conventions and Recommendations
CONTENTS
PART ONE: General Report 2
PART Two: Observations and Information concerning Particular Countries 18
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 18
A. General Observations and Information concerning Certain Countries 18
B. Observations and Information on the Application of Conventions 21
C. Table of Detailed Reports on Ratified Conventions 70
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) 71
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 72
A. General Observations and Information concerning Certain Territories 72
B. Detailed Reports on the Application of Conventions in Non-Metropolitan Territories 72
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by the
International Labour Conference (article 19 of the Constitution) 73
Index by Countries to Observations and Information Contained in the Report 75
was to be expected that different points of view
would exist as to the methods of organisation of
workers and employers. The Government member of
Spain stressed that it was clear that the principle of
free choice contained in Convention No. 87
depended on the decision and the wish of the workers
themselves. The Convention did not favour either
trade union unity or pluralism provided the system
corresponded to the free choice of those concerned.
58. Several members of the Committee, and in
particular the Government members of Cuba,
Czechoslovakia, Ethiopia, Hungary, the German
Democratic Republic, the USSR and Zimbabwe and
the Workers' members of Czechoslovakia and the
German Democratic Republic, did not agree with the
conclusions of the general survey on the question of
trade union unity. The Government member of the
USSR was of the view that the problem of trade
union pluralism involved both legal and factual
aspects. The text of Convention No. 87, he added,
contained no mention of trade union monopoly. He
referred to a report of an ILO mission entitled "The
Trade Union Situation in the USSR " as reflecting a
different point of view from the concept of trade
union pluralism as an ideal. He also mentioned the
Ninth Conference of Asian States Members of the
ILO in 1980, the report of which stated that Convention
No. 87 did not express any view either for or
against trade union unity and that the supervisory
bodies had recognised that workers and employers
were generally opposed to pluralism and competing
trade unions and had requested governments to
promote unity in order to avoid difficulties. As
regards the factual aspect, trade union unity, according
to the Government member of the USSR, had
always been an advantage for the development of the
workers' movements, not only in the socialist countries.
He, therefore, disagreed with the view of the
Committee of Experts that legislation should not
specifically name a single central organisation, even if
the existing trade union organisation had requested
this. The Government member of Czechoslovakia
considered that, in the socialist countries, where all
the forces of production were united for the attainment
of common objectives, trade union unity was
indispensable. He considered it legitimate for united
trade union movements to call for and be accorded
certain prerogatives to strengthen their bargaining
position. Similar tendencies towards trade union
unity could be encountered in the developing countries
where development objectives were the main
priority. He considered strange the supposition made
in the general survey that trade union unity in
Western countries was the result of a voluntary
process whereas, in the socialist countries and in the
developing countries, it was always imposed under
pressure from governments. Several members,
including the Government member of Cuba, the
Government member of the German Democratic
Republic and the Workers' members of Czechoslovakia
and Romania said that the question of
pluralism or trade union unity had to be seen against
the historical perspective of the experience of each
country. The Government member of Ethiopia
stressed that the object of Convention No. 87 was not
to make trade union diversity obligatory, as unity had
always been the long-standing ideal of the workers of
the world, on whose initiative Convention No. 87 had
been elaborated. In her view there was a fundamental
difference between a situation where the unified
structure was established by legislation, commencing
with the existing trade unions, and a situation where
the workers and their unions united voluntarily into a
single organisation. This view was supported by the
Workers' members of the Byelorussian SSR and the
USSR.
59. Some members pointed out the dangers that
could, in their opinion, arise in situations where
pluralism existed. The Workers' member of Colombia
stated that, in countries where pluralism existed,
or was said to exist, many workers' organisations had
been used by governments for political ends. The
Government members of Ethiopia and Czechoslovakia
and the Workers' members of the Byelorussian
SSR, Colombia, Czechoslovakia, Ecuador and
Mali pointed out that trade union pluralism favoured
employers and weakened the workers.
60. Referring to the study published by the ILO in
1960 on the trade union situation in the USSR, the
Government member of the United States noted that
the supervisory bodies had repeatedly rejected the
views contained in that report.
Right to strike
61. The question of the right to strike gave rise to
a number of comments by the members of the
Committee. The Workers' members stated, without
recognition of the right to strike, freedom of association
did not exist. They welcomed the fact that the
Committee of Experts had considered that this right
constituted one of the essential means at the disposal
of the workers for the defence and promotion of their
interests. According to the Workers' members, the
General Survey revealed that the right to strike was
subject to numerous restrictions in many countries,
and they launched an appeal to all member States to
improve this disturbing situation, including that of
the public service and supervisory staff. In cases of
prohibitions or restrictions on strikes imposed exceptionally
in the public interest, provision should be
made for workers to enjoy all necessary guarantees.
Referring to the sanctions that were frequently
imposed on strikers, the Workers' member of Japan
stated that, according to the Committee of Experts,
the participation in peaceful strikes, even if these
were illegal, should not result in sentences of imprisonment
being imposed. He considered that this
interpretation would have a favourable influence on
legal decisions that were taken regarding trade
unionists who had been arrested for strike action.
The Workers' member of Liberia stated that responsible
trade unions did not call a strike unless this was
necessary. He considered that the right to strike
should be granted to the workers of every country
including those in the developing countries.
62. The Government member of Tunisia noted
that, for several years, the Committee of Experts had
sought to introduce more clarity into the conditions
in which the right to strike could be exercised by
trying to conciliate the right of workers to defend
their personal, economic and social interests with the
necessity to maintain social peace and the national
interest, which was an essential condition for maintaining
the rhythm of the national development
effort. He pointed out, however, that his Govern-
31/13
ment was not in agreement with the Committee of
Experts concerning the interpretation which the
Committee had given to the concept of essential
services. He considered that international standards
should not be applied in the abstract when dealing
with concrete differences which characterised the
national conditions of member States, In addition, he
wondered whether it would not be useful to seek a
better definition of the difficult and fundamental
concept of the right to strike or to envisage a specific
international Convention on this subject.
Collective bargaining
63. The Committee as a whole emphasised the
close links which existed between freedom of association
and collective bargaining. The Government
member of Belgium pointed out that, if the principles
of freedom of association were not respected, any
valid agreement between the social partners lost the
significance which the supporters of an economic and
social democratic system wished to give to it. The
Workers' members considered that collective bargaining
had, in recent years, been subjected to too
many limitations with governments claiming serious
economic and financial difficulties. They considered,
however, that, even in these cases, the restrictions
imposed should be exceptional measures and of short
duration. The Employers' members also considered
thai the right to bargain collectively without impediment
or restriction was of primary importance since it
implied both dialogue and the concept of agreement
which could only bear fruit if they were exercised
without interference by the State. The Employers'
member from Venezuela emphasised that the intervention
by governments in the determination of
CGnGiiiGns or cnìpioynicnt w¿s not öiiiy ¿i cicma! ui
the basic principle of freedom to negotiate, but it did
net Ccntriiyiit-C LG ccGnGmic anu sociai progress, in ms
view, dialogue and direct agreement between the
parties was the best method of solving problems in
labour relations matters.
64. Several Workers' members including those
from Denmark, France and the Netherlands referred
to the impediments placed by governments, for
reasons of incomes policy, in the way of free determination
of wages, especially in the developed countries.
The Workers' member of France considered
that the economic difficulties of the Western countries
threatened to jeopardise the right to bargain
collectively. He added that the guarantee of this right
was a obligation for States and that governments had
a duty to play a role in encouraging collective
bargaining.
65. The Government member of the Netherlands
expressed regret that the Committee of Experts had
not, in its general survey, given an interpretation of
the obligations concerning collective bargaining
which flowed from Convention No. 87. He referred
to the problems confronting certain countries which
tried to reconcile the concept of collective bargaining
with socio-economic policy, in particular employment
policy. In his opinion, the general survey only
provided a few guidelines as to what should be done
to take account, on the one hand, of the concern of
governments to maintain a reasonable standard of
living for all, taking account of the economic situation,
and, on the other hand, the objective of noninterference
by the autorities in collective bargaining.
66. The Workers' member of Senegal referred to
the Collective Bargaining Convention (No. 154),
adopted by the Conference in 1981. The Government
member of Sweden expressed the wish that the
examination of this Convention by member States
could also lead to a reappraisal by these States of the
possibility of ratifying Conventions Nos. 87 and 98,
especially as regards those which had not yet done so.
67. As regards the right to bargain collectively of
workers in the public service, the Workers' members
noted that, at the normative level, some progress had
been made with the adoption by the Conference in
1978 of the Convention concerning the Determination
of Conditions of Employment in the Public
Service (No. 151). According to the Workers' members,
this Convention had been ratified by too few
countries, and States should endeavour to apply it
faithfully and completely, thereby giving effect to the
resolution adopted by the Joint Committee on the
Public Service at its session in May 1983. The
Workers' member of Japan expressed the wish that
the next general survey on freedom of association
should include an examination of the extent to which
Convention No. 151 was being applied. This would
be all the more important since Article 6 of Convention
No. 98 permitted the exclusion from its scope of
public servants engaged in the administration of the
State and, frequently, this provision was given too
wide an interpretation, which meant that in several
countries all, or the majority of public servants were
excluded from the protection of the Convention. The
Workeis' member of Czechoslovakia mentioned
that, in contrast, in the socialist countries collective
agreements were concluded in all public undertakings,
industries and services.
*
68. The Committee noted, both in its general
discussion and in its consideration of individual cases,
in the light of comments made by the Committee of
Experts, that there existed fundamental differences
of interpretation and application between the legislation
and practice of many countries and those provisions
of the Convention concerning the right of
workers to establish organisations of their choice.
This was particularly the case as regards the socialist
countries. These divergences reflected different concepts
of freedom of association. The Committee
expressed the wish that the divergences thus encounterd
could be overcome and clarified with the assistance
of the ILO, in particular by the organisations of
seminars and other means.
Conclusions
69. The Committee concluded its work on the
general survey by noting that the discussion which
had taken place had offered to all the possibility of
expressing, with complete frankness, their positions
on the difficult problems which freedom of association
and collective bargaining presented in the world
of today. The Committee expressed the hope that the
general survey of the Committee of Experts and the
discussion that had taken place in the Conference
Committee would encourage the recognition and the
promotion of freedom of association which the ILO
in its Constitution had solemnly undertaken to pro-
31/14
Document No. 266
ILC, 80th Session, 1993, Report of the Committee on
the Application of Standards: Submission,
discussion and adoption, pp. 28/7-28/17
INTERNATIONAL LABOUR
CONFERENCE
EIGHTIETH SESSION
GENEVA, 1993
RECORD OF PROCEEDINGS
INTERNATIONAL LABOUR OFFICE
GENEVA
PROPOSED CONVENTION CONCERNING THE PREVENTION
OF MAJOR INDUSTRIAL ACCIDENTS : ADOPTION
Original Arabic: The PRESIDENT - We move
on now to the adoption of the proposed Convention
concerning the prevention of major industrial
accidents. I submit the Preamble for your approval.
If there are no objections I shall consider it
adopted.
(The Preamble is adopted.)
Original Arabic: The PRESIDENT - We shall
now adopt the proposed Convention, Article by
Article.
(Articles 1 to 22.are adopted seriatim.)
Original Arabic: The PRESIDENT - We shall
now adopt the proposed Convention as a whole. If
there are no objections, I shall consider it adopted.
(The proposed Convention is adopted as a whole.)
Original Arabic: The PRESIDENT - In accordance
with article 40, paragraph 7, of the Standing
Orders of the Conference, the proposed Convention
concerning the prevention of major industrial accidents
as adopted by the Conference, will be submitted
to the Drafting Committee of the Conference for
the preparation of the final text.
PROPOSED RECOMMENDATION CONCERNING THE PREVENTION
OF MAJOR INDUSTRIAL ACCIDENTS: ADOPTION
Original Arabic: The PRESIDENT - We now
move on to the adoption of the proposed Recommendation
concerning the prevention of major industrial
accidents, starting with the Preamble. If
there are no objections I shall consider it adopted.
(The Preamble is adopted.)
Original Arabic: The PRESIDENT - We shall
now adopt the proposed Recommendation, Paragraph
by Paragraph.
(Paragraphs 1 to 6 are adopted seriatim.)
Original Arabic: The PRESIDENT - We shall
now consider the proposed Recommendation as a
whole. If there are no objections. I shall consider it
adopted.
(The proposed Recommendation is adopted as a
whole.)
Original Arabic: The PRESIDENT - In accordance
with article 40, paragraph 7, of the Standing
Orders of the Conference, the proposed Recommendation
concerning the prevention of major industrial
accidents as adopted by the Conference, will be submitted
to the Drafting Committee of the Conference
for the preparation of the final text.
RESOLUTION CONCERNING EXPOSURE TO AND SAFETY
IN THE USE OF BIOLOGICAL AGENTS AT WORK, SUBMITTED
BY THE COMMITTEE ON THE PREVENTION OF MAJOR INDUSTRIAL
ACCIDENTS: ADOPTION
Original Arabic: The PRESIDENT - We shall
now move on to the adoption of the resolution concerning
exposure to and safety in the use of biological
agents at work. If there are no objections, I shall
consider this resolution adopted, taking into account
the reservations expressed.
(The resolution is adopted.)
Original Arabic: The PRESIDENT - We have
now completed the consideration of the report, the
proposed Convention and Recommendation, and the
resolution submitted by the Committee on the Prevention
of Major Industrial Accidents. I express my
gratitude to the Chairman, the Vice-Chairmen, the
Reporter, the members of the Committee and the
staff of the Secretariat for the excellent work they
have done, with special thanks to the experts. I
would like to assure Mr. Campbell, the Employer
Vice-Chairman, that we will not do to him what the
people did to Socrates. I thank the Secretariat for the
excellent work they have done.
REPORT OF THE COMMITTEE ON THE APPLICATION OF
STANDARDS: SUBMISSION, DISCUSSION AND ADOFHON
Original Arabic: The PRESIDENT - We shall
move on to the second item on our agenda - the
report of the Committee on Application of Standards,
contained in Provisional Record No. 25.
It is my pleasure to ask the officers of the Committee
to come to the rostrum. The Chairman, Mr.
Pérez del Castillo, Government member, Uruguay;
the Employer Vice-Chairman, Mr. Wisskirchen, Employers'
member, Germany ; the Worker Vice-Chairman,
Mr. Peirens; Workers' member, Belgium; and
the Reporter, Ms. Wiklund, Government member,
Sweden.
I give the floor to Ms. Wiklund to submit the
report.
Ms. WIKLUND (Government member, Sweden;
Reporter of the Committee on the Application of
Standards) - It is an honour for me to present to this
session of the Conference the Report of the Committee
on the Application of Standards which appears
as Provisional Record No. 25.
The Committee was set up under article 7 of the
Standing Orders of the International Labour Conference
to consider and report on item III on its agenda,
" Information and reports on the application of Conventions
and Recommendations".
The Committee based its work on the report of
the Committee of Experts on the Application of
Conventions and Recommendations. As usual, the
Committee divided its work into different parts, as is
reflected in the Report. Part One began with a general
discussion of various aspects of the application
of international labour standards. It then discussed
the General Survey of the Committee of Experts
which this year dealt with the Workers with Family
Responsibilities Convention (No. 156) and Recommendation
(No. 165), 1981. Lastly, it examined a
28/7
number of individual cases relating to compliance by
States with their obligations under or relating to international
labour standards.
Numerous statements were made during the Committee's
general discussion. In many of these statements,
opinions were voiced concerning the roles of
the supervisory bodies and the complementary mission
of the Committee of Experts and the tripartite
Conference Committee on the Application of Standards.
The Conference Committee again acknowledged
the work done by the Committee of Experts based
on the principles of independence, objectivity and
impartiality and emphasized again the importance of
dialogue between the two Committees.
This year's Conference Committee on the Application
of Standards was rather special, in that it was
the first time ever that the Committee of Experts on
the Application of Conventions and Recommendations
was represented. The Chairman of the Committee
of Experts, Mr. José Maria Ruda, attended
the general discussion and that of the general survey,
in accordance with the wish expressed by the Conference
Committee last year.
The Committee very much welcomed this development",
as a mark of the intensification of constructive
dialogue between the committees. Each one of
these is an essential element in the ILO's supervisory
machinery which according to Mr. Ruda and many
others, is the most effective of its kind in any international
organization.
The Committee expressed its warm appreciation
of this direct contact between the two committees
and hoped that the presence of the Chairman of the
Committee of Experts will be ensured in the future
as well.
The Committee was informed of the consideration
being given within the Organization to ways in which
the arrangements for requesting Government reports
on ratified Conventions under article 22 of the Constitution
might be improved. This followed the Committee's
discussions in previous years of the difficulties
encountered by some governments in fulfilling
their reporting obligations.
There was general support for such efforts, although
it was emphasized by many members of the
Committee, and the Committee was reassured by the
representative of the Secretary-General on this point
- that any future reforms would in no case be allowed
to weaken the quality and effectiveness of the
supervisory system.
The Committee understood that a proposed balanced
package of measures replacing certain automatic
reporting procedures with more selective and
objective ones could be foreseen. In this context the
Committee wanted to underline the vital part played
by employers' and workers' organizations at various
stages of the supervisory system.
The question of the interpretation of Conventions
was considered further by many speakers, in the light
of an Office document submitted last month to the
Governing Body, concerning the possibility under article
37(2) of the Constitution of the ILO of setting
up a tribunal competent to give interpretations.
Diverse views were voiced in the debate. Some
members expressed varying degree of support for a
tribunal which, according to them, would speedily resolve
disagreements regarding interpretations. Other
members questioned the need for a tribunal given
the existing supervisory system. The Committee
agreed that the matter required further study.
The ILO's standard-setting policy was dealt with
by several members. One innovation of particular interest
to this Conference is the participation of a senior
official of the International Labour Standards
Department in the secretariat of technical committees
of the Conference responsible for new instruments.
This is seen as a means of improving the
drafting of Conventions and Recommendations in
the light of the Organization's experience with existing
instruments.
Personally, I do welcome this cooperation between
the technical and the standards departments. It is a
fact that in technical committees which are given the
difficult task to formulate international standards on
specific subjects, for the majority of members, at
least on the government benches, it is their first concrete
contact with the ILO and with international
standard setting.
With the assistance within the technical committees
of experts from both technical departments
and the International Labour Standards Department,
the risk of confusion and ambiguities in the
formulation and later application of standards can be
reduced.
The Committee also draws to the attention of the
Conference the different views expressed as to flexibility
in ILO standards. Many members raised the
importance of the principle of universality, both as
regards the terms in which international labour standards
are conceived and as regards the application
in a continuously changing economic and social
environment.
In this context, some members stressed the need
to review and adapt standard setting and other activities
in order to meet the new challenges. Others emphasized
the link between economic development
and transition, on the one hand, and the maintenance
and improvement of social protection, which
are the task or ILO standards, on the other.
The link between standards and development was
on several occasions explicitly or implicitly referred
to during our meetings.
There was, no doubt, widespread agreement in our
Committee as to the role of the ILO's standard-setting
activities in the fight against poverty and the realization
of the objective of social justice which are
the Organization's priorities.
Personally, I fully endorse this.
I do, however, think that we have to understand -
and also to accept - that an issue as vast as that of
poverty alleviation, in some quarters, can be approached
from other angles. It is necessary also to
consider the way in which we and they - mainly economists
- look upon each other.
Perhaps because the mother tongue of our Chairman
is Spanish, I have come to think of one of the
most widely translated books in the world, namely
Don Quijote by Cervantes. The subject-matter of
that famous novel is idealism and realism.
Like Cervantes, I am convinced that we need them
both - the Knight and his Squire. Therefore both
sides participating in this debate should try to learn
from each other - realizing that the means are always
subordinate to the aims.
Two subjects - freedom of association and employment
policy - held the Committee's special attention.
The report shows the opinions of the mem-
28/8
bers of the Committee as to the particular question
of the interpretation of the Freedom of Association
and Protection of the Right to Organize Convention,
1948 (No. 87), and whether and how far that Convention
protects the right to strike.
It was not for the Committee to come to any
agreed conclusion on this point. The Committee
noted that the General Survey of the Committee of
Experts will next year be on the subject of freedom
of association and Convention No. 87.
The other subject covered in this part of the report
is the implementation of a policy of full, productive
and freely chosen employment, under the Employment
Policy Convention, 1964 (No. 122). Contrary to
most Conventions, this is a policy instrument and it
is my belief that such a Convention requires an
approach and discussion which differ from other
instruments.
The Convention cannot be regarded as a blueprint
for economic or employment policies in an everchanging
world economy. This Convention mentions,
and that is extremely important, a framework, some
basic principles and ideas and also some fundamental
procedures for economic and employment policy.
As you will find in the report, the discussion on
this Convention, therefore and as usual, has its own
specific characteristics.
As regards technical cooperation and standards,
and the various forms of assistance given by the Office,
the Committee heard with interest of the inclusion
of standards specialists in 12 of the new multidisciplinary
teams in the field. Several Government
members spoke of the help they had received
through the Office. The Committee noted the objective
of the Office of increasing promotional activities
as complementary to supervisory activities - and
in no way detracting from them.
The Committee was very interested in the Committee
of Experts' indications as to the ILO's relations
with other international organizations, especially
on human rights issues, and with special
reference to the World Conference on Human
Rights in Vienna. The Committee expressed clearly
its view that the ILO should improve its image and
play a more active role in the debate on labour and
social issues in countries at all stages of development,
including such areas as the protection of children.
The Committee devoted the second part of the
general discussion to the overall study by the Committee
of Experts which this year dealt with the application,
by all member States, of the Workers with
Family Responsibilities Convention, (No. 156), and
Recommendation (No. 165), 1981. Those ILO standards
have a dual objective. They aim at creating
equal opportunity and treatment in working life between
men and women with family responsibilities.
And, in addition, they have the goal of promoting
equality between workers with family responsibilities
and those without such responsibilities.
It was apparent from the many statements made
that, all over the world, women especially face difficulties
of various kinds in combining gainful employment
with family responsibilities. Women still shoulder
all or most of the duties of caring for family
members and maintaining the home, while men are
the main breadwinners - full stop.
Moreover, it appeared from the discussion that
women are still suffering considerable discrimination
in the areas of vocational training and employment
on account of their actual or anticipated family responsibilities.
Indeed, a number of statements indicated
that for women labour conditions had worsened
in this respect as a result of the high and
increasing levels of unemployment which often result
from structural adjustment measures.
Though there was general support for the objectives
of the standards in question, reservations were
expressed by some as to the feasibility of meeting
those objectives through the application of the standards.
Certain members concluded that there was a
case for revising the Convention in the hope that it
would be reframed in terms that were more practicable,
thereby increasing the possibility of a higher rate
of ratification.
Generally, however, it can be said that the discussion
concluded on an optimistic note. Many speakers
commended the Committee of Experts for providing
clarifications and explanations concerning the requirements
of the instruments, which might encourage
more countries to apply the instruments and to
ratify Convention No. 156. For many speakers, the
survey was an important contribution to the activities
to be undertaken next year, which has been declared
the "International Year of the Family" by the
United Nations.
This was considered an opportune time for the
ILO to disseminate information on the implementation
of these instruments, concerning both shortcomings
and successes, to the United Nations and the
ILO's constituents. The aim is to promote equality
worldwide and to inspire more States to ratify Convention
No. 156.
The third and largest part of the work of the Committee
consisted in examining, on the basis of observations
made by the Committee of Experts, individual
cases of respect for ILO standards. For the
discussion of individual cases, the Committee continued
to apply the working methods which it had previously
followed.
As regards cases concerning the fulfilment of certain
obligations, or so-called automatic cases, however,
the Committee tried a new approach designed to
increase the impact of the discussion and make better
use of the time available.
These are the cases concerning compliance with
the obligations under articles 19, 22 and 35 of the
Constitution to supply reports on ratified Conventions,
in reply to comments rnade by the Committee
of Experts; to supply reports on submission to the
competent national authorities of instruments
adopted by the Conference ; and to supply reports on
unratified Conventions and on Recommendations.
The new approach was simply to discuss all those
cases in sequence at one sitting instead of examining
them piecemeal during several different sittings. The
results may be regarded as interesting, and the Committee
hopes to continue next year to refine its approach
to these cases in order to find the best possible
means of improving its effectiveness in this
respect.
The cases considered in this way are mentioned
under the appropriate headings in section D of the
report and, as usual, Part Two of the report gives full
details of the information provided by governments
to the Conference in response to the indications of
the Committee of Experts and also gives details of
the Committee's discussions of these cases.
28/9
Further, the Committee examined the application
by 33 governments of their obligations under individual
ratified Conventions.
It was pleasing to note that all the governments
invited by the Chairman to participate in the Committee's
discussions of their cases of this kind and
present at the Conference responded to his invitation.
Many of these cases concerned problems of the
application of Conventions relating to freedom of association,
forced labour or equal opportunity and
treatment.
The Committee decided to draw the attention of
the Conference to the case of Myanmar as regards
the Freedom of Association and Protection of the
Right to Organize Convention, 1948 (No. 87). Paragraph
125 of the report expresses the Committee's
deep concern that the necessary measures should be
taken to guarantee the application of the Convention.
The Committee also decided to note with grave
concern in paragraph 127 that there had been continued
failure over several years to eliminate serious
discrepancies in the application by Sudan of the
Forced Labour Convention, 1930 (No. 29).
In these two cases, the Committee invites the
Governments concerned to supply the relevant reports
and information so that the Committee may
follow up the matters at the next session of the Conference.
Part Two of the report contains a record of the
detailed discussions of the individual cases, as well as
the conclusions adopted by the Committee.
I want to take this opportunity to thank the Chairman
of the Committee, Mr. Pérez del Castillo, as well
as the Employer and Worker Vice-Chairmen, Mr.
Wisskirchen and Mr. Peirens, for the competence
and efficiency with which they made sure that the
Committee could complete such a large volume of
work and discharge the heavy responsibilities which
the Conference placed on it. May I also through you
thank Mr. Bartolomei de la Cruz for his valuable
support and also all his staff for their dedicated
work, whether they were seen in the meeting room
or not.
•As you can see, the Committee on the Application
of Standards continues to perform its vital tasks in a
spirit which recognizes both the strength of traditions
and established procedures and the necessity to
maintain a dynamic attitude in the constant search to
ensure maximum effectiveness.
I am convinced that it is the idea of dialogue which
lies behind both the strength and the dynamism, and
it is in this confidence that I commend the report to
the Conference.
(Mr. Gray takes the Chair.)
Original German: Mr. WISSKIRCHEN (Employers'
member Germany; Vice-Chairman of the
Committee on the Application of Standards) - Our
Committee has succeeded once again in presenting
to the Conference a report that is not only comprehensive
but very substantive. The Reporter has
touched on and explained the essential points.
We noted in our Committee, like others, that the
world is undergoing a very rapid and intensive process
of change.
I could therefore place my contribution under the
motto of change, for the challenges involved are ultimately
challenges to the efficiency and credibility of
this Organization, because the ILO is not exempt
from these changes on the eve of the twenty-first
century. On the contrary, it must make its own contribution
to this change. The ILO must therefore review
its goals and priorities in its respective areas of
activity. The area of standard setting should be reviewed
as well as those of the supervisory machinery,
technical cooperation and advisory services and an
organizational structure must be devised that is adequate
to meet these new challenges. The IOE recently
presented proposals for a basic reform of the
ILO, which we emphatically endorse.
In the Committee on the Application of Standards,
we have noted for a long time now that it
appears essential to make amendments to our standard
setting activities. We have been registering a
significantly reduced rate of ratifications in connection
with the more recent instruments over the past
15 years. At the same time, we see that member
States are meeting the obligations which they have
accepted in ratifying the instruments to an increasing
less extent. The close connection between standard
setting, ratification and practical application has been
evident for many years. Standards which were too
high, too complex, unclear or too detailed in content
and aims will either not be ratified or will be ratified
with the certainty that they will not be implemented
in law and in practice. Such an attitude is prejudicial
to the credibility and the prestige of member States
as well as the ILO as a whole.
In this connection we must also develop greater
sensitivity to noting when standards have become
obsolete rather than reacting only when there is a
series of denunciations of an instrument.
An appropriate adjustment to the new challenges
requires greater use of the assistance, support and
advisory services of the ILO must be strengthened.
We consider these services of the ILO, from the
standpoint of practical efficiency, to be as at least as
valuable with regard to the application of standards
as the supervisory machinery in the traditional sense.
The comments of the Committee in the general
part of its report on the Employment Policy Convention,
1964 (No. 122), are in essence a very objective
inventory of the problems in this respect. Meanwhile,
there is general agreement that there can be no isolated
employment policy which can create lasting
jobs profitably. This requires the coordination of
many areas of policy, not least of which is collective
bargaining whereby the social partners can set the
points towards an increase or decrease in jobs.
Some matters of principle concerning the supervision
of standards and the supervisory machinery
could be placed under the heading of "change" and
dealt with in this context. Concerning the two most
important supervisory bodies of the ILO, the Committee
of Experts on the Application of Conventions
and Recommendations and the Conference Committee
on the Application of Standards, there has
been no doubt for at least two years that both bodies
are autonomous and independent and do their work
accordingly. Equally undeniable, according to the unambiguous
statement of the Committee of Experts in
its report of 1991, is the fact that the decisions of the
one are not binding on the other, and that the respective
evaluations do not prevail erga omnes. We think
it is a very good sign of a new dialogue between
these two autonomous bodies within the ILO super-
28/10
visory system that the Chairman of the Committee of
Experts accepted the invitation of our Committee
and was present during the entire general discussion
in our Committee as a very attentive observer. Mr.
Ruda, the Chairman of the Committee of Experts,
welcomed this new and intensive form of dialogue, a
dialogue which in Mr. Ruda's words includes a review
of previously held opinions.
Now that the more formal but essential issue of
the autonomy and independence of the two bodies
has been clarified, in future only the substance of the
different views will be at issue. Such differences do
not occur very often, but occasionally in connection
with particularly important questions, in particular
the interpretation methods to be applied in regard to
Conventions and their concrete results. The only
measuring rod for the interpretation of Conventions
is, in our view, international customary law as well as
international law in the written form set forth in
Articles 31 and 32 of the Vienna Convention on the
Law of Treaties. This is also in principle recognized
by the Committee of Experts. As we repeatedly
stated in the Conference Committee, none of the interpretation
methods that are relevant under international
law allows for the "creation" of an extremely
broad right to strike to be derived from
Convention 87, such has been gradually developed
by the Committee of Experts. Neither the text nor
any discernable agreement between the signatory
States or their subsequent conduct allow for such an
interpretation. On the contrary, in the drafting of
Conventions Nos. 87 and 98, it was clear that issues
of the right to strike were not to be dealt with. We
have already referred to the corresponding documents.
The historical facts confirm therefore merely
what results from the first priority interpretation
rule. The Employers, for example, already in 1953
expressed this view in the Governing Body when the
Committee on Freedom of Association began to develop
a right to strike.
We are not dealing here with a classical interpretation
de lege artis. To that extent, a close connection
may exist with the undeniable fact that the decisionmaking
body of the ILO, that is to say the plenary of
the Conference, has hitherto been deliberately prevented
from dealing with this topic. A proposal from
the Employers last year to place this problem on the
agenda of the Conference was also rejected.
Implicitly, the right to strike developed by the
Committee of Experts is virtually unlimited and the
regulatory scope of the member States therefore
tends to be non-existent.
The formulae developed by the Committee of Experts,
which allow almost any type of strike and proscribe
almost any restriction as being contrary to international
law, cannot be justified on the basis of
any interpretation instrument derived from Convention
No. 87, because a strike is obviously not the
internal affair of a trade union. It is directed primarily
against employers but, given the scale of the division
of labour in our time, its inevitable and calculated
impact tends increasingly and ever more
intensively to affect third parties and the general
public. So-called "solidarity strikes" are intentionally
directed first and foremost against people who
are not actually involved in the conflict and political
strikes are always designed to put pressure on lawmakers
- hence, in a democracy - on parliament. No
State can afford to accept such action without some
form of regulation. On the contrary, it is the task of
every State to make provision, in the area of labour
conflict, for the protection of individual citizens and
the population as a whole. The basic purpose of a
State and its chief raison d'être is to provide the best
possible protection for its citizens.
In recent years there has been a suggestion, not
unrelated to these interpretation issues, that article
37, paragraph 2, of the ILO Constitution should be
examined more closely. According to this provision,
the Conference, at the suggestion of the Governing
Body, can draw up rules for the establishment of a
tribunal for the expeditious determination of any dispute
or question relating to the interpretation of a
Convention. The Office has prepared a document in
this connection, dealing with various aspects of article
37, paragraph 2,, of the Constitution and other
issues of interpretation. Credit is due to the Office
for its thorough and careful work. A whole series of
findings are extremely enlightening. Some comments,
however, are not so clear and call for further
explanation and examination. In the Committee we
also discussed certain points in greater depth and
voiced a certain amount of criticism. Moreover, some
issues which are not addressed at all by the document
will have to be considered at some stage. To
sum up, therefore, we would say for the time being
that this important issue cannot be decided on the
basis of the present document. Further careful study
is necessary. Only when all further possibilities have
been explored can we consider whether and how
such a tribunal under article 37, paragraph 2, of the
ILO Constitution might be established.
This year's General Survey under article 19 of the
ILO Constitution is devoted to Convention No. 156
and Recommendation No. 165. This, too, is a topic
oriented towards the future and towards change. The
question at issue is the equality of workers, particularly
those with and without family obligations.
While nobody would underestimate the significance
of this topic or fail to support the general objective,
the measures needed to attain these goals cannot be
limited to the typical employee-employer relationship,
but have other far-reaching implications, partly
of a general political and social nature. Full attainment
of the goal in question would require an almost
inconceivably large package of practical measures, in
particular statutory regulations. Such an array of regulations
would be bound to conflict with the basic
principles of a free social order. The Convention
therefore avoids this unnegotiable path but heads off
in another direction that is no less fraught with problems.
It establishes extraordinarily wide-ranging and
comprehensive objectives, which are to be incorporated
in any policy relating thereto. Together with
further sub-goals, which are not always crystal clear,
the whole experience creates an impression that family
and occupational responsibilities can be combined
without conflict provided that the State steps in with
the necessary measures and regulations. As these
ideas are thus conceived with an ideal situation in
mind, they are bound to be unwieldy. The experts
talk about flexibility but what we have before us is a
considerable lack of clarity and vagueness. One gets
the same impression from the way individual provisions
of the Convention are dealt with in the experts'
report. Member States have raised many questions
about the meaning and interpretation of the individual
provisions and the Committee of Experts has
28/11
tried to give answers, which tend to reinterpret the
obligations in very broad terms.
From the methodological point of view, it is extremely
interesting to note that the Committee of
Experts, in its attempts at interpretation, refers in
practically all cases to the preparatory work, which
therefore determines their interpretation. We find
this aspect important in the light of the general discussion
of the matter of deriving a rrght to strike
from Convention No. 87.
Since the instruments before us do not prescribe
specific and limited measures but only a goal to aim
at, we are no longer dealing here with the flexible
standards which are certainly also sought by employers;
we are dealing rather with an overloaded
instrument which describes an ideal goal. The Report
of the Committee of Experts itself shows that
we are not dealing with a flexible and easily applied
Convention, because any measures taken by member
States, whenever these are assessed by experts, are
routinely described as inadequate and therefore
criticized.
The member States have evidently recognized the
problems inherent in these instruments, since only 19
ratifications have thus far been registered, and some
of the States which have ratified the Convention will
hardly be in a position fully to comply with its exacting
requirements. One of the contracting States has
not even submitted its first report. Although the employers
have a natural interest in everyone being
able to attain self-fulfilment through their occupation,
we are sceptical that such a dream could be
realized on the basis of standards alone. There are,
after all, deeply rooted, traditional values which must
be taken into account, and they can only be changed
cautiously, and in small steps. This is what happens in
practice in plants and factories. A uniform comprehensive
model which takes account of different value
systems and allows time for a gradual change in attitude
is along way off.
In any case, we recommend that the report of the
Committee of Experts be very carefully taken into
account. Its analysis might finally lead to a review of
Convention No. 156 with a view to. making it more
precise, practical and realistic.
The main object of the Committee is to examine
the extent to which member States have met their
obligations to the ILO/ We are talking about varied
reporting obligations and about material obligations
of the ratifying States to implement Conventions
which they have ratified. During the proceedings we
have clearly differentiated between the so-called formal
and material obligations. The purpose of concentrating
our discussion of the report issues into
one afternoon was to stress the significance of the
issue, to bring together all the States concerned and
to make better use of the limited time available to
the Committee. This seems to have succeeded. It was
not the purpose of the new procedure to absolve the
member States concerned from the duty to reply.
Moreover, there has been a stagnation, or even
decline, in the fulfilment of reporting obligation. This
has caused much concern among the experts and on
our Committee, since the fulfilment of reporting obligations
is essential to any meaningful monitoring.
Late or incomplete reports, or no reports at all, place
the whole system in question and create an unacceptable
degree of inequality in the treatment of different
member States. Since, on the one hand, the absolute
numbers of reports due and received reaches new
record levels owing to the increase in membership, in
ratifications and in Conventions, the Committee has
long recognized the necessity of taking steps to clarify
the situation. At the request of the Conference Committee,
the Office has produced a document with
many proposals which could improve the situation.
We are grateful for these very meticulous deliberations.
The approach outlined there is one which we
can support, and we trust that the Governing Body
will soon take the necessary decisions.
As we have already noted during the discussion in
Committee, the only thing that must not happen is
that nothing happens.
It is in the very nature of our review system that
we deal mainly with cases in which there is a considerable
discrepancy between statute and practice in a
member State and the demands of a given Convention.
Nevertheless, we do not forget that most member
States faithfully fulfil their obligations under the
Constitution and the ratified Conventions. The problematic
cases and the relevant discussions in the
Committee are described in detail in the comprehensive
annex to the general part of our Report. We do
not want to name particular cases here because that
would seem somewhat arbitrary. May I, however, say
that there do exist most serious violations of human
rights, such as persecution for ethnic, religious and
political reasons, and these occur on a mass scale and
lead to many deaths. It is regrettable that we are not
even in a position to deal with these very clear violations
of basic Conventions. On the contrary, like
many other organizations in the world, we seem to
be helpless in the face of these terrible events.
But whatever the sweeping changes happening in
our time, our high recognition for the President of
our Committee, and for his prudent guidance of our
discussion remains undiminished, as it does for our
Reporter and for the Office's large team under the
very careful guidance of Mr. Bartolomei. All have
made vital contributions.
We also remain firm in our desire for objective
cooperation with the Workers' group and their
spokesman, Mr. Peirens. My special thanks go to the
Employers' group on the Committee for their unswerving
support especially this year, represented by
Mr. Potter.
Original French: Mr. PEIRENS (Workers' member,
Belgium; Vice-Chairman of the Committee on the
Application of Standards) - The role of the ILO in
connection with international labour standards and
their supervisory machinery in this changing world
was the leitmotif in many speeches during the general
discussion in our Committee.
Several members in this context pleaded in favour
of a revision and updating of the supervisory machinery
and in particular of the constitutional obligation
to send in reports. The Office is also preparing a
document for the Governing Body for November
1993.
The Workers' group of our Committee is of the
opinion that this is not a secondary aspect of a technical
nature. On the contrary, the sending of reports.
together with the observations of the workers' and
employers' organizations is indispensable for the operation
of the supervisory machinery.
We would like to emphasize that it is necessary to
be prudent and to ask the competent bodies of the
28/12
ILO, that is the Governing Body, not to take hasty
decisions which might, directly or indirectly, weaken
the supervisory machinery and therefore the working
of our Committee.
The Workers' group of our Committee proposes
that the Governing Body, after a first discussion in
November, should defer the question to next year so
as to discuss it at the Conference and in particular in
the Committee on the Application of Standards. Our
Committee has, in fact, agreed to devote a special
sitting at the next session of the Conference to the
consideration of the future of the standard-setting
machinery and the supervisory machinery, as can be
found in paragraph 136 of our report. The Committee
of Experts, in paragraph 12 of its report, has
also indicated that it would put forward its views regarding
the future of standards and the supervisory
machinery of the ILO. The Governing Body could
thus take a decision after the 81st Session of the Conference.
The Workers' group of the Committee feels that
the proper working of the supervisory machinery is
of capital importance. We are not against change on
the condition that the future operation of the supervisory
machinery is reinforced.
We would like to draw the attention of the Conference
to the fact that the Employers' and Workers'
groups have pleaded many times in favour of a reinforcement
of the supervisory machinery and most of
the Governments have quite clearly indicated their
support of the standards and supervisory machinery.
Several Government members have declared that
the supervisory machinery of the ILO is superior to
that of other international or supranational organizations
and that we should not be influenced by systems
of an inferior quality.
We would therefore firmly like to ask for the
maintenance of a very regular control of the application
of Conventions in both law and practice. Within
this framework we would like to insist that particular
attention should be given to the Conventions which
have been classified in the category of fundamental
human rights and to certain Conventions in the priority
category, such as Conventions Nos. 81, 122 and
144. This classification was formally decided on by
the Governing Body in 1987 on the proposal of the
Ventejol report.
We would like to draw the attention of all the delegates
of the Conference to the conclusions of this
Ventejol report regarding the classification of Conventions.
This report concludes that the Conventions regarding
the fundamental human rights, such as the
Freedom of Association and Protection of the Right
to Organize Convention, 1948 (No. 87), and the
Right to Organize and Collective Bargaining Convention,
1949 (No. 98), require no revision and
that, furthermore, most of them have already been
revised.
The intervention of the supervisory machinery
cannot be restricted to clear and flagrant violations
of fundamental human rights. These have often become
very sophisticated and masked by complex
legislation, in the industrialized countries also. That
is why we attach great importance to the sending in
of first reports after the ratification of a Convention
and to the sending of questionnaires and detailed reports
on a regular basis, in particular for the fundamental
Conventions regarding freedom of association,
free collective bargaining, prohibition of
discrimination and forced labour.
The ILO could also extend the present system of
the complaints procedure, before the Committee on
Freedom of Association to other Conventions and
fundamental principles, as for instance equality of
treatment, as was suggested by the Committee of Experts
last March.
Furthermore, we would like to ask the Office to
send the report of the Committee of Experts earlier.
This would facilitate the participation of workers in
the developing countries.
As regards the possible setting up of a competent
tribunal so as to resolve problems of interpretation
for a given Convention in accordance with Article
37(2), the Workers' group is of the opinion that the
setting up of such a tribunal could put into question
the credibility and the authority of the Committee of
Experts. To date, we are not convinced of the additional
value of a tribunal as compared to the experts,
to the dialogue of our Committee and the existing
possibility of resorting to the International Court of
Justice.
The extent óf the right to strike was once again the
subject of in-depth discussions, seeing as the Employers
have some differences of opinion with the
Committee of Experts.
We, as the Workers' group, firmly support the view
of the Committee of Experts regarding the modalities
of the right to strike.
The Committee of Experts has always based itself
on the principles which have been developed and refined
consensually by the tripartite Committee on
Freedom of Association.
Even if the mandate of the Committee of Experts
on the one hand and that of the Committee on Freedom
of Association on the other are different, we
really do not see how their respective interpretations
could diverge. This would be illogical and inconsistent.
The legal value of the criticism of a group in our
Committee, that is to say the Employers, as regards
the position of the Committee of Experts should be
put into perspective in view of the scope of the tasks
of the two Committees. The Committee of Experts
guarantees, through its composition and its methods
of work, an objective assessment. Our tripartite
Committee maintains and keeps alive the system,
thanks to our knowledge of the situation in the field.
The position of the Employers, stating that the
modalities of the right to strike as well as the scope
of the concept of essential services should be governed
by national law, is not compatible with the fundamental
principle of universality of standards.
During the discussion of individual cases, we had a
shocking case which illustrates very well the serious
consequences of the non-respect of the universality
of standards. This is the denial of trade union rights
and the non-application of the labour code in the
export processing zones in Pakistan (the Freedom of
Association and Protection of the Right to Organize
Convention, 1948 (No. 87), and the Right of Association
(Agriculture) Convention, 1921 (No. 11). Our
Committee as a whole has adopted very firm conclusions
on this particular case and if, next year, our
Committee does not find that there has been concrete
progress, the case of Pakistan, in the opinion of
the Workers' group, will have to be referred to in a
special paragraph. The Government has furthermore
28/13
formally accepted a technical assistance mission from
the ILO.
As has already been mentioned by the Reporter,
our Committee also dealt with the General Survey
regarding workers with family responsibilities
(Workers with Family Responsibilities Convention,
1981 (No. 156), and Recommendation No. 165).
The Workers' group is of the opinion that the objectives
of these instruments are very topical and that
countries should increase their efforts to make them
more concrete.
The General Survey clarified the scope of the
Convention and this clarification will undoubtedly
facilitate its ratification. We encourage States to ratify.
This Convention should not in our opinion be
revised.
Our Committee has also adopted important conclusions
on several serious cases. Even though no
special paragraphs were included in.the report, the
conclusions imply very important commitments in
very specific and concrete terms.
We are referring to the cases of Colombia (very
serious violations of law and practice as regards Convention
No. 87); Costa Rica (Convention No. 87,
in relation to solidarity movements or company
unions); Brazil, the Forced Labour Convention, 1930
(No. 29), including child labour, and the Indigenous
and Tribal Populations Convention, 1957 (No. 107);
and India, the Forced Labour Convention, 1930
(No. 29), with reference to servitude for debt by
child labour.
We have also given great attention to the Employment
Policy Convention, 1964 (No. 122). In two cases
(the United Kingdom and New Zealand) we were
able to see that employment is considered as an element
or a variable which can be adjusted among
many others. Such a policy is not in conformity with
Convention No. 122 and we would like to suggest
that you read paragraph 55 of the general part of the
report of the Committee of Experts. In both cases
the Government is not fully consulting workers' and
employers' organizations for the implementation of
employment policies (Article 3 of the Convention).
The case of Sweden (Right to Organize and Collective
Bargaining Convention, 1949 (No. 98), has
demonstrated that certain countries adopt socio-economic
policies without an in-depth consultation of
the employers' and workers' organizations who are
the authors and signatories of collective agreements.
These policies have direct and indirect effects on collective
agreements and collective bargaining. This
approach is contrary to the basic principle of Convention
No. 98. Compliance with collective agreements
and the outcome of negotiations is, in our
opinion, a non-negotiable principle.
Our Committee was able, for the first time, to discuss
a case involving the Tripartite Consultation (International
Labour Standards) Convention, 1976
(No. 144). The United Kingdom has not respected
Convention No. 144 because it failed extensively to
consult the workers' and employers' organizations
regarding the denunciation of certain Conventions
and regarding the replies to the comments of the
Committee of Experts.
The technical Conventions were also discussed. I
am referring to the conclusion of the case of Morocco
and the Benzene Convention (No. 136). Our
Committee found that Morocco is not applying the
essential provisions of this Convention, whose practical
importance is more than simply a technical question.
The health and even the life of the workers are
involved. If there is no decisive progress in the very
short term, we will come back to this case next year.
We have also dealt with questions of substance as
to the organization and operation of social security
in Chile (the Old-Age Insurance (Industry, etc.)
Convention, 1933 (No. 35)). In this connection it is
important to emphasize that the pension system in
Chile is not only in violation of Convention No. 35,
but its performance and credibility in the long run is
also challenged by independent specialists. Furthermore,
the system is not in conformity with the fundamental
principles of the Social Security (Minimum
Standards) Convention, 1952 (No. 102), and the Invalidity,
Old-Age and Survivors' Benefits Convention,
1967 (No. 128). Chile has not yet ratified these
two Conventions. The Committee firmly insisted that
Chile should reconsider its position.
Because of a lack of time it was not possible for us
to deal with a number of other cases. We hope that
the report of the experts will make it possible for us
to take them up next year if we feel the need to do so
(for example, Conventions Nos. 87 and 111, as regards
Germany, Convention No. 107 for Bangladesh,
and Convention No. 87 for Canada).
As pointed out by our Reporter, we were obliged
to single out Myanmar in a special paragraph of our
report (paragraph 125), since the Committee of Experts
and the Conference Committee have pointed
out for many years, in connection with Convention
No. 87, that certain provisions of national legislation
require modification, without success up to now.
The case of Sudan is reported in paragraph 127,
and refers to the continued failure to eliminate deficiencies
in the application of the Forced Labour
Convention, 1930 (No. 29). I would like to remind
you that last year we had to single out Sudan in a
special paragraph because of the continued existence
of forced labour and the lack of cooperation on
the part of the Government with the ILO and our
committee.
In conclusion, I too would like to thank our Chairman,
Mr. Pérez del Castillo, who guided and chaired
our discussions in a remarkable manner. I would also
like to thank our Reporter Ms. Wiklund, the representative
of the Director-General, Mr. Bartolomei
de la Cruz, Mr. Zenger and Mr. Gernigon, as well as
the whole team of the Office and the interpreters for
their efforts and devotion. I would also like to thank
the Employers' Vice-Chairman, Mr. Wisskirchen, for
his spirit of dialogue and constructive approach.
I would also like to thank the officers of the Workers'
Group, particularly Mr. Hickey, who had to leave
because of bad health, and everyone else who helped
us.
Our Report was unanimously adopted by the
Committee. I commend it to the Conference for
adoption.
Original Spanish: Mr. PEREZ DEL CASTILLO
(Government member, Uruguay; Chairman of the
Committee on the Application of Standards) - I was
not intending to speak, but I would like to take this
unexpected opportunity to thank the members of the
Committee on the Application of Standards for the
work that we have done together.
I would particularly like to mention the cooperation,
the serious and responsible work done and the
28/14
spirit of teamwork shown by Mr. Bartolomie de la
Cruz, Mr. Zenger and Mr. Gernigon, and at the same
time, alongside them I would like to thank all those
people who as our Reporter so rightly said were visible
or not in the meeting room but who we felt were
with us and that we could count on their work the
behind-the-scenes activities of so many staff members
of our Office, which make it possible for the
activities of this Committee, which are particularly
difficult demanding greater effort and more time, can
be carried out and enable us to submit this report to
you. This report which like anything produced by human
hand has its good and bad points but is well
intended and the result of the efforts we made to
ensure that something as important as the Application
of Standards, could be dealt with at this session
of the Conference.
So thank you all once again. I hope that we will
meet again next year so that we can go on striving
towards our objectives and fulfilling our mandate of
social justice as laid down in the Constitution.
Original Japanese : Mr. HIROMI (Government adviser
and substitute delegate, Japan) - I would like to
comment on the wording in Provisional Record
No. 25, concerning the case involving Japan.
An amendment submitted by the Government of
Japan is not reflected in the Committee's report; we
request that the amendment submitted by the Japanese
Government be included in the Record of the
Conference.
When inviting the ILO to Japan in connection
with Convention No. 87, the Chairman of the Committee
said at the meeting, and I quote "... to visit
Japan to discuss this question of the right to organize
of the fire-fighting personnel in order to be able to
see the situation for themselves on the spot, and discuss
the matter with the persons directly concerned ".
However, in PV 13 of the Committee's minutes, this
comment was summarized as "... [Japan]... ". Since
we consider " to invite ... to come to Japan ... to obtain
information directly" to be different from the
conclusions of the Chairman of the Committee, we
submitted our amendment. In the Committee, it was
announced that this part was adopted as amended.
However, the meeting ended before the specific
wording of this amendment was presented. The version
in the report of the Committee distributed today
in Provisional Record No. 25 remains unamended,
and therefore does not reflect the decision of the
Committee.
I regret that this has happened in terms of procedure.
This should have been dealt with at Committee
level, but since this was not done due to the situation
I have described, I would like to state that the
Government of Japan insists that the wording of the
Chairman of the Committee be the correct version,
and asks that this statement be placed in the Record
of the Conference.
Original German: Mr. AD AM Y (Workers' adviser
and substitute delegate, Germany) - The World Conference
on Human Rights that is meeting in Vienna
makes it clear that the instruments for the guarantee
of human rights have to be further developed and
strengthened. But within the context of our terms of
reference, we also have to make sure that there are
no reductions made in the universality and binding
nature of the central standards respecting human
rights. This is particularly valid as regards what I am
sure is the most of important of all international labour
Conventions, namely the Freedom of Association
and Protection of the Right to Organize Convention
1948, (No. 87). And yet recently it was
specifically against this instrument that the criticisms
of the Employers were directed in the Committee on
Application of Standards. This was very clear again
this time. Quite obviously they want to make this
central international standard conditional, and they
are calling jurisprudence into question as regards the
scope of the right to strike.
The criticisms by the German Employers' member
in this Committee in particular concentrate on the
points on which my country has also had problems in
observing this Convention. It is therefore not surprising
if the Government representative of my country
in this Committee also tries to make conditional this
human rights international labour Convention, and if
he largely shares the position adopted by the Employers'
group in this Committee. They have together
been basing their criticisms recently on the
fact that Convention No. 87 does not contain any
express guarantee of the right to strike. However,
this is not something which is true only for the ILO
but is the case also with the Constitution of a number
of member States. For instance, it is also the case
with the Constitution of my country.
The supervisory machinery in the ILO, early on
recognized, in a practice that goes back 40 years, that
strikes are a central premise and a means of making
it possible for workers and their trade unions to ensure
that collective agreements be implemented and
applied. In order to protect the activities of trade
unions, you have to have the right to strike.
The Committee of Experts on the Application of
Conventions and Recommendations and the Committee
on Freedom of Association have established a
number of basic principles on freedom of association
which in particular define the conditions and circumstances
under which the right to strike can be banned
or limited. It is not true that these Committees recognize
a practically unlimited right to strike as has been
suggested here by the representative of the Employers.
On the contrary, they have tried to establish
a proper balance between the opposing interests in
play and at the same time avoid an unjustified restriction
of the activities of trade unions.
The Committee on Freedom of Association in the
meantime has developed a body of important rulings
which shows, as does the work of the Committee on
the Application of Conventions and Recommendations,
that the Employers' group has for many
years agreed with the basic principles of this freedom
of association. However, since the end of the 1980s
and the end of the Cold War, this consensus has been
questioned more and more by the Employers in the
Conference Committee.
However, the justifications that are given do not
really stand up to analysis. The Vienna Convention
on the Law of Treaties is referred to more and more
in order to allow greater intervention by the State in
the exercise of the right to strike, and greater influence
over case law within the ILO. In fact, however,
and here I decisively disagree with the Employers'
spokesman, the Vienna Convention on the Law of
Treaties is not applicable to international organizations
like the ILO if they have their own rules of
interpretation. There is no principle of general inter-
28/15
national law that standards adopted by international
organizations must be interpreted according to the
rules of the Vienna Convention. Article 5 of that
Convention, for instance, says that its own rules do
not take precedence over the corresponding interpretative
rules of international organizations. The
case law developed over decades in the ILO therefore
takes precedence over the corresponding provisions
of the Vienna Convention.
But even if one invokes the rules of the Vienna
Convention, then according to Article 31, paragraph
3, it matters not whether all the contracting parties
have explicitly agreed to the interpretation of the
Convention concerned. On the contrary, silence can
be taken as consent. According to article 31 of the
Vienna Convention it is necessary to take into account
" any subsequent practice in the application of
the treaty which establishes the agreement of the
parties regarding its interpretation ".
For many years, there has been absolutely no contradiction
by the Employers on the Conference
Committee as regards the existing case law. On other
supervisory bodies, like the Committee on Freedom
of Association, they also support the principle of
freedom of association and trie practical way it is
implemented.
Furthermore, the following facts also lead us to
believe that the principles of freedom of association
have become part of general international law.
Firstly, in 1986 the United Nations Commission on
Human Rights recognized as valid the interpretation
by the ILO bodies of the right to strike. Secondly, the
ILO Fact-Finding and Conciliation Commission on
Freedom of Association concerning the Republic of
South Africa designated many principles of freedom
of association as part of customary international law.
And, thirdly, the Legal Adviser, in his statement on
article 37, paragraph 2, of the ILO Constitution drew
attention to the fact that the long-standing interpretation
of the Committee on Experts - which has not
been contradicted - could become binding.
This incontravertible principle of international law
must be taken into account. It would also be wrong
to accept the principle that an interpretation of ILO
Conventions that is lenient on the States Parties
must be chosen. This is something that can hardly be
acceptable for international organizations and certainly
not for Conventions on human rights. Otherwise
the universality and the binding nature of human
rights precepts would be called in question. The
historical method of interpretation used by the Employers
is also unconvincing. For example, the critical
comments of the Employers shortly after the
adoption of Convention No. 87 are today overinterpreted.
Even at that time they could not be considered
as a basic questioning of the right to strike.
With regard to Convention No. 35, the Employers on
this year's Committee relativized an historical interpretation
themselves in the case of Chile. We very
often have difficulties with historical interpretations
because, as we all know, when standards are being
established political compromises are frequently reached
outside the committee room and therefore do
not appear in any minutes or records. And this is
something mentioned by the Legal Adviser in the
opinions I have already referred to.
Above all, it should be borne in mind that the
Vienna Convention - which is constantly being referred
to by the Employers - views the historical
method merely as a source of supplementary assistance.
According to Article 32 of the Vienna Convention,
this method can only have significance if the
meaning of the rules for interpretation is ambiguous
or obscure or leads to a result which is manifestly
absurd or unreasonable. This certainly does not apply
to the decision-making practice in the ILO supervisory
bodies. Hence, even under the Vienna Convention
there is no basis for a strong emphasis on
historical interpretation.
We should neither directly nor indirectly question
the methods and case law of the ILO supervisory
machinery. We must ensure that the approach
adopted in assessing the implementation of standards
is not influenced by ideas originating in a specific
social or economic system. The law applied in
some industrialized countries cannot and should not
therefore become a standard for the interpretation of
Conventions.
After the collapse of the former socialist bloc, we
must in no way give in to the temptation to misuse
the supervisory system for one-sided political and
economic purposes.
The Committee of Experts, because of the status,
knowledge and independence of its members, deserves
the greatest attention and respect. By contrast
with the Committee of Experts, the Conference
Committee consists not of independent experts but
of representatives of the different parties affected by
the implementation of the Conventions. However,
this certainly does not mean that the comments by
the Conference are expressions of views and considerations
without moral and political value. On the
other hand, we should not overstress the importance
of the Conference Committee, since otherwise in the
long term we would be running the risk that majority
decisions, taken by that body which is politically constituted,
could conflict wfth the principle of independent
proceedings according to due process. It
should not be forgotten that numerous difficulties
were encountered when the Committee's Report was
approved. We should therefore decide jointly to ensure
that the conclusions of the Committee of Experts,
and the supervisory and interpretation method
used, are in no way watered down.
If we do not wish to endanger the credibility of
this international organization, then we must speak
out against any relativization of human rights in the
world of work as elsewhere. This applies particularly
to the Committee of Experts.
Fortunately, the Chairman of that Committee, Mr.
Ruda, has once again emphasized in the Conference
Committee that the experts were expressly guided by
the principles of objectivity, impartiality and independence
and in this we emphatically support the
Committee.
As the spokesman of the Employers' group emphasizes,
we are in no position, when it comes to
violations of international standards, to guarantee a
solution, and we should rather aim at extending our
procedures rather than at reducing them, otherwise
we will lose our credibility.
Mr. POTTER (Employers' adviser and substitute
delegate, United States) - I had not intended to participate
in this general discussion but because of the
unfortunate attack on the representative of the Employers'
group characterizing that representative as a
German Employer, I want to make it clear that the
28/16
points of view that Mr. Wisskirchen articulated are
those of the entire Employers' group. The last few
years have witnessed a substantial shift in world relations,
particularly in the demise of the struggle between
east and west. That earlier conflict involving
diametrically opposed views cast a shadow on the
work of our Conference Committee and the supervisory
machinery generally. Disagreements that the
Employers have always had with just a few interpretations
by the Experts of the ILO Conventions, particularly
concerning the right to strike, were muted in
a show of solidarity to preserve the supervisory machinery.
The support of the supervisory machinery
was important then and still is. For the most part the
Conference Committee follows the findings and interpretations
of the Experts, but this does not mean
that the Conference Committee is a rubber stamp for
the Experts. While the report of the Experts is indispensable
to the Conference Committee's work, the
Conference Committee could not fulfil its obligations
under article 7 of the Standing Orders without conducting
its own independent evaluation. More often
than not, the Conference Committee's conclusions
and those of the Experts are consistent.
In the context of a number of cases this year, for
example the cases of Ecuador, Colombia and Pakistan,
to name a few, the Employers have set out in
some detail the reasons why we believe the Experts'
interpretations concerning the right to strike is not
completely correct. The social and legal matter of the
right to strike is not contemplated by the specific language
of Conventions Nos. 87 and 98 or the respective
legislative histories. Moreover, reliance on the
decisions of the Committee on Freedom of Association
is not appropriate, because its decisions are
based on general principles and are not limited to the
terms and legislative histories of Conventions Nos.
87 and 98 as interpreted and applied in accordance
with articles 31 and 32 of the Vienna Convention.
But reliance on the Vienna Convention is not essential
to reach this conclusion, because Conventions
simply apply traditionally and generally accepted
customary rules of interpretation of international
treaties.
Perhaps more importantly the exercise of the right
to strike does not take place in a vacuum. By its very
nature the exercise of the right to strike not only
affects the employer but the community as well.
Strikes take place in different legal contexts, stages
of economic and industrial development and economic
circumstances. This has been the consistent
position of the Employers' group since 1953. The Experts
"one-size fits all" approach, particularly with
regard to essential services in the public service, simply
does not take into account these realities and the
absence of any express provision of the right to strike
in Conventions Nos. 87 and 98. Instead of simply
reiterating past pronouncements on the right to
strike, the Experts need to take these legal and economic
factors into account and re-examine the right
to strike both in the context of observations in particular
cases, and in their 1994 survey on Convention
Nos. 87 and 98.
The PRESIDENT (Mr. GRAY) - May I take it that
the report of the Committee on the Application of
Conventions and Recommendations is adopted by
the Conference ?
(The report is adopted.)
(The Conference adjourned at 1 p.m.)
28/17
Document No. 267
ILC, 99th Session, 2010, Report of the Committee on the
Application of Standards, paras 74-78
16 Part I/1
International Labour Conference Record of Proceedings 16
99th Session, Geneva, 2010 PART ONE
Third item on the agenda: Information
and reports on the application of
Conventions and Recommendations
Report of the Committee on the
Application of Standards
PART ONE
GENERAL REPORT
Contents
Page
A. Introduction ............................................................................................................. 3
B. General questions relating to international labour standards .................................. 9
C. Reports requested under article 19 of the Constitution: General Survey
concerning employment instruments ...................................................................... 27
D. Report of the Joint ILO–UNESCO Committee of Experts on the Application
of the Recommendations concerning Teaching Personnel (CEART) ..................... 49
E. Compliance with specific obligations ..................................................................... 54
F. Adoption of the report and closing remarks ............................................................ 62
Annex 1. Work of the Committee .......................................................................................... 67
Annex 2. Cases regarding which governments are invited to supply information
to the Committee ..................................................................................................... 79
16 Part I/24
Convention and that dealt with unconfirmed situations, unrelated to objectives of
compliance with the Conventions.
Concluding remarks
74. The Worker members wished to respond to the comments of the Employer members and
certain Governments regarding the right to strike and the impartiality of the members of
the Committee of Experts. They felt that they could not leave unanswered the Employer
members’ attacks on the principles laid down by the ILO’s supervisory bodies regarding
the right to strike under Convention No. 87. For some years it had become the established
practice for the representatives of the Workers and Employers to discuss matters of mutual
interest with the Committee of Experts. The healthy and entirely transparent collaboration
that had thus developed testified to the reliance of all sides on the intellectual rectitude and
the impartiality of the members of the Committee of Experts. The Committee of Experts
was a body of legal experts from all horizons and from all juridical cultures who were
appointed by the Governing Body for a renewable mandate of three years. Did that mean
that there was a crisis of confidence vis-à-vis the Governing Body, the Worker members
wished to know? They recalled further that although the right to strike was not referred to
explicitly in an ILO Convention, as was the case in many countries’ legislation, that did
not prevent the existence of such a right from being recognized on the basis of several
international legal instruments that considered the right to strike as a corollary of freedom
of association and the right to bargain collectively. In its Articles 3 and 10, Convention
No. 87 asserted the right of workers’ and employers’ organizations “to organize their
administration and activities and to formulate their programmes”. Based on those
provisions, the Committee on Freedom of Association (since 1952) and the Committee of
Experts (since 1959) had on numerous occasions reaffirmed that the right to strike was a
fundamental right of workers and of their organizations. Those supervisory bodies had
defined the sphere of application of that right and had drawn up a set of principles setting
out the scope of the Convention. It would appear that the Employer members, while not yet
actually contesting the right to strike, did contest its scope. Yet the principles enunciated
also respected the right of enterprises and did not condone wildcat, violent or political
strike action. They were simply a well-defined tool that provided workers whose rights
were flouted with a weapon of last resort. Since the Committee on Freedom of
Association, too, was established by the Governing Body, the Worker members questioned
once again whether there was a crisis of confidence vis-à-vis that institution.
75. The Employer members expressed appreciation of the comments made by the Government
and Worker members during the general discussion, in particular the statement made by
the Worker member of Pakistan. In response to the final remarks of the Worker members,
the Employer members wished to clarify that they were only asking for the tripartite
governance of the supervision of ILO standards to be restored in conformity with article 23
of the Constitution of the ILO and article 7 of the Standing Orders of the International
Labour Conference. They emphasized that they were not questioning the valuable role of
the Committee of Experts, but only certain of its interpretations. In particular, as was wellknown,
the Employer members had for many years been raising questions with regard to
the detailed regulation of the right to strike, to which the Committee of Experts had never
responded. The Employer members added that they were by no means questioning the
right to strike itself, but merely the detailed regulation thereof by the supervisory bodies.
The supervisory process had engaged in a progressive extension and detailed elaboration
of the regulation of the right to strike. He recalled that the Committee of Experts had first
referred to the right to strike in an observation in 1961 and that the legislative history of
Conventions Nos 87 and 98 demonstrated that attempts to include explicit reference to the
right to strike in their texts had been rejected. Reliance on the Committee on Freedom of
Association was not necessarily appropriate in support of the examination of the
16 Part I/25
application of ratified Conventions by the Committee of Experts. The Employer members
reaffirmed their support for the work of the supervisory system and the important factfinding,
examination and conclusions of the Committee of Experts. However, it was not in
accordance with the tripartite governance of the supervisory mechanism to silence one of
the tripartite constituents when the latter raised valid concerns on a minority of the
comments made by the Committee of Experts.
The reply of the Chairperson of the
Committee of Experts
76. The Chairperson of the Committee of Experts emphasized first of all that the Committee of
Experts consciously endeavoured to be scrupulously impartial and to confine itself to the
facts as presented in the file. The Committee of Experts did realize that the government
and the social partners, acting in all good faith, naturally viewed an incident from their
particular vantage point. As such, the Committee of Experts sought to separate advocacy,
opinion and allegations from facts. Referring to the obligation of the government to
communicate its report to employers’ and workers’ organizations to allow them the
opportunity to comment, the speaker underlined that somewhat similarly, if the Committee
of Experts received a comment from an employers’ or workers’ organization alleging
noncompliance with a Convention, the Experts forwarded that complaint to the
government and requested a reply. If a reply was received from the government, the
Committee of Experts did take it into account in its observation or direct request.
77. With regard to the right to strike, the speaker emphasized that this right had been
recognized by the Committee of Experts for over 50 years. The last General Survey on
freedom of association was written in 1994, before any member of this year’s Committee
of Experts was appointed. In reviewing her 15 years on the Committee of Experts, she
could not recall an instance where the Committee of Experts had extended its
jurisprudence regarding the right to strike. To some extent, the Committee of Experts
responded to issues that the parties had raised. It may be that the right to strike had
appeared more frequently in observations on Convention No. 87, but that did not arise
from any intention of the Committee of Experts to extend its jurisprudence in this area.
78. Finally, she underlined that the Committee of Experts was the highest impartial body
charged with a supervisory function within the ILO. It was established to be a neutral,
impartial body in an organization with a tripartite governance system. The Conference over
the years had created ways in which the voices of the parts of this tripartite system could
be heard, including ways in which their views on the Committee of Experts’ report and the
General Survey were heard, and published. The traditional separation of the Committee of
Experts’ report and General Survey from the views expressed by governments, employers
and workers on the same issues had served the Organization well over the years. She urged
the Committee to think most carefully before proposing a change, which might seem small,
but which could change the delicate balance that had enabled this unique tripartite
organization to move its valuable work forward for more than 90 years.
The reply of the representative of
the Secretary-General
79. At the very outset, the representative of the Secretary-General wished to thank all those
who had participated in this discussion. The Chairperson of the Committee of Experts had
already responded to certain matters raised concerning the report of the Committee of
Experts and its General Survey. Turning to the matters falling within the Office’s
responsibility, she wished to confirm, in relation to the question raised by the Libyan Arab
Document No. 268
ILC, 101st Session, 2012, Report of the Committee on the
Application of Standards, paras 82-236
19(Rev.) Part I/1
International Labour Conference 19(Rev.)
PART ONE
Record of Proceedings
101st Session, Geneva, May–June 2012
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee on the
Application of Standards
PART ONE
GENERAL REPORT
Contents
Page
A. Introduction ................................................................................................................... 3
B. General questions relating to international labour standards ........................................ 7
C. Reports requested under article 19 of the Constitution –
General Survey on the fundamental Conventions ........................................................ 16
D. Compliance with specific obligations ........................................................................... 27
E. Discussion of the list of individual cases to be considered by the Committee ............. 32
F. Follow-up discussion on the way forward .................................................................... 46
G. Decision paragraph submitted by the Chairperson of the Committee following
tripartite consultation .................................................................................................... 48
H. Adoption of the report and closing remarks ................................................................ 52
Annex 1. Work of the Committee ...................................................................................... 58
Annex 2. Preliminary list of possible cases to be examined by the Committee
on the Application of Standards at the ILC in June 2012 ................................... 72
19(Rev.) Part I/22
80. The Government member of Norway emphasized the need to strengthen labour inspection
and social dialogue in the process of the implementation of the fundamental Conventions
at the national level. She drew attention to the need to focus on women workers, workers
in the informal economy and vulnerable groups of workers, as well as issues of equity and
non-discrimination. Greater attention should also be paid throughout the work of the ILO
to the comments of the supervisory bodies, and the social partners should play a more
active role from the design stage in technical cooperation projects.
81. A Worker member of the Bolivarian Republic of Venezuela indicated that his country
recognized fundamental workers’ rights in the Organic Labour Act, which gave effect to
the eight fundamental Conventions, and that it had achieved economic growth for the past
few years while recognizing all the fundamental principles and rights at work. Collective
agreements had been, and were being, negotiated in many sectors, and working hours had
been reduced to 40 a week, with two rest days. Another Worker member of the Bolivarian
Republic of Venezuela added that, through the establishment of workers’ rights in law, the
new model of production developed with the participation of the workers and an equitable
distribution of wealth, her country was now recognized as one of the Latin American
countries with the lowest levels of inequality.
Freedom of association and collective bargaining
82. The Employer members, with reference to the comments by the Chairperson of the
Committee of Experts concerning the discussion of the right to strike in relation to the
1994 General Survey, emphasized that, as indicated in the present General Survey, they
had clearly articulated their objections during the 1994 discussion to the interpretation by
the Committee of Experts of the right to strike. While the Employer members
acknowledged that a right to strike existed, as it was recognized at the national level in
many jurisdictions, they did not at all accept that the comments on the right to strike
contained in the General Survey were the politically accepted views of the ILO’s tripartite
constituents. As the Employers’ group had consistently highlighted year after year, they
fundamentally objected to the Committee of Experts’ opinions concerning the right to
strike being received or promoted as soft law jurisprudence. There was no mention of the
right to strike in the text of Convention No. 87, and the determinative body to decide such
rules recognized by the ILO was the Conference, not the Committee of Experts. Under
article 37 of the ILO Constitution, only the International Court of Justice (ICJ) could give a
definitive interpretation of international labour Conventions. The situation was exacerbated
because General Surveys were important and were published and distributed worldwide
without any prior approval by the Conference Committee. The fundamental Conventions
were embedded in many international processes and instruments, such as the UN Global
Compact, the OECD Guidelines for Multinational Enterprises and ISO 26000. The
Employer members therefore objected in the strongest terms to the interpretation by the
Committee of Experts of Convention No. 87 and the right to strike, to the use of the
General Survey with regard to the right to strike and to being placed in such a position by
the General Survey. They indicated that, to maintain the credibility and coherence of the
Employers’ group, their views and actions in all areas of ILO action relating to the
Convention and the right to strike would be materially influenced.
83. In more general terms, the Employer members agreed with the comments of the
Committee of Experts that, in the absence of a democratic system in which fundamental
rights and principles were respected, freedom of association could not be fully developed.
There were situations of the failure to apply Convention No. 87 outlined in the General
Survey, such as the denial of the right to organize to certain categories of persons,
restrictions on the holding of free elections in representative organizations, restrictions on
the categories of persons who could hold office in organizations, restrictions on the
19(Rev.) Part I/23
independence and functioning of organizations, the requirement of excessive numbers of
members to establish organizations, which went to the heart of the Convention and were
also experienced by some employers. Moreover, the Committee of Experts had rightly
emphasized that employers were also protected by the freedom of association instruments.
84. An Employer member from Denmark noted that he represented public employers, although
he did not represent the State, and that he wanted to comment on the impact of
Conventions Nos 87 and 98 on public employers. The Committee of Experts had created
arbitrary distinctions in interpreting the right to strike, which forced it to make special rules
for the public sector. Public employers would not follow the creative inventions of the
Committee of Experts, as the right to strike depended on national legislation, not on
international ILO Conventions. The Committee of Experts’ interpretation of Convention
No. 98 was problematic in that it allowed minority unions to conclude agreements when no
union comprised a majority of workers. While minority unions could negotiate agreements,
Employers retained the right to refuse.
85. The Worker members, with reference to the remarks of the Employer members, reaffirmed
that the right to strike was an indispensable corollary of freedom of association and was
clearly derived from Convention No. 87. Moreover, the Committee of Experts had once
again advanced a well thought-out argument on why the right to strike was quite properly
part of fundamental labour rights. It was important to recall that the Committee of Experts
was a technical body which followed the principles of independence, objectivity and
impartiality. It would be wrong to think that it should modify its case law on the basis of a
divergence of opinions among the constituents. While the mandate of the Committee of
Experts did not include giving definitive interpretations of Conventions, for the purposes
of legal security it nevertheless needed to examine the content and meaning of the
provisions of Conventions and, where appropriate, to express its views in that regard.
86. The Worker members said that the right to strike was part of the ordinary exercise of
freedom of association. Without that right, workers would not be in a position to exert any
influence in collective bargaining. Questioning the right to strike as an integral part of
freedom of association would mean that other rights and freedoms were meaningless in
practice. The fundamental labour rights and their interpretation within the context of the
supervisory process were essential elements in ensuring the durability of social rights and
civil liberties.
87. The Worker member of Peru added that the right to strike was sacred, inalienable and nonnegotiable
and thousands of workers had lost their lives or suffered torture defending that
right. The Worker member of Brazil said that the right to strike was as important as the
right to work and the right to decent wages.
88. The Worker members welcomed the reference in the General Survey to their concerns on
the direction taken by the case law of the European Court of Justice regarding the
relationship between the right to strike and the free movement of services. They expressed
pessimism concerning the so-called Monti II Regulation and noted that European case law
was running counter, not just to the principles of freedom of association, but also to the
right to collective bargaining. Although the Committee of Experts had noted that its
mandate was limited to the shortcomings of member States and did not extend to regional
organizations, national policy could not possibly be divorced entirely from regional policy.
The question therefore arose as to whether the supervisory machinery should also cover
problems at the regional level, and not only in Europe.
89. Several Worker members referred to restrictions on trade union rights in their countries.
The Worker member of the United States indicated that, in the United States in 2011, the
authorities in certain states had used budget deficits resulting from the financial crisis to
19(Rev.) Part I/24
justify efforts to cut the wages and benefits of teachers and other public sector workers and
to eliminate or restrict their collective bargaining rights. Employers in the United States
were extremely hostile to trade unions and continued to use anti-union tactics to put
workers under pressure not to join unions. In the context of continued high unemployment
and weak economic growth, certain private sector employers had used lockouts to pressure
workers to accept wage and benefit concessions, greater numbers of temporary workers
and subcontracted work. It was also noted that in Senegal, civil service status, reserved for
a minority, removed collective bargaining and consultation rights from workers, who were
not therefore able to negotiate their pay. In the Republic of Korea, trade union law had
recently been revised in a retrogressive manner. Workers who took the lead in union
activities and collective action risked dismissal, imprisonment or lawsuits for the
compensation of damage. Certain workers’ confederations had been repeatedly threatened
with the cancellation of their registration because of the high numbers of precarious
workers in their membership, and when subcontracted workers tried to exercise the right to
organize, the subcontract could be cancelled, which had the same effect as collective
dismissal.
90. Several Government members recalled that the right to strike was well established and
widely accepted as a fundamental right. The Government member of the United States
expressed appreciation of the Committee of Experts for its continuing efforts to promote
better understanding of the meaning and scope of the fundamental Conventions, including
the right to strike. The Government member of Norway added that her country fully
accepted the position of the Committee of Experts that the right to strike was a
fundamental right protected under Convention No. 87.
Forced labour
91. The Employer members observed that Conventions Nos 29 and 105 remained extremely
relevant and they welcomed the comprehensive information provided in the General
Survey on their application in law and practice. However, there was no room for
complacency, as problems still existed, particularly in terms of a lack of commitment to
taking effective action for the elimination of forced labour and the mechanisms for the
enforcement of its prohibition. Moreover, the Employer members noted a tendency in the
General Survey to expand the definitions of forced labour to new areas, such as prison
labour and overtime. They warned that such extensions ran the risk of inadvertently
trivializing the problem. In the case of prison labour, they expressed the view that the
definition provided by the Committee of Experts of the notion of voluntariness was too
narrow. Moreover, while an approximation to a free labour relationship could be an
indicator of an absence of forced labour in those circumstances, there were other viable
indicators. It would probably be advisable to define more closely the limits of
voluntariness. In relation to overtime, it should be emphasized that, although excessive
overtime hours did not constitute decent work, nor did they amount to forced labour if the
worker was free to leave the employment relationship. With reference to the prohibition by
Convention No. 105 of forced labour as a punishment for having participated in strikes,
they added that the Convention was not an instrument for regulating strikes, nor did it
prohibit sanctions for strikes, but only the exaction of forced labour as a sanction for
having participated in strikes, whether or not the strikes were legal.
92. The Worker members said that forced labour, which was the antithesis of decent work, was
not limited to certain countries or sectors, but was to be found throughout the world in such
forms as human trafficking, new forms of migration, the privatization of prisons, and even
in the progress of “quid pro quo” social security policies (under which workers who were
unemployed or living in poverty had to perform work of public interest in exchange for
their benefits).
19(Rev.) Part I/25
Elimination of child labour
93. The Employer members welcomed the first General Survey to cover Convention No. 182,
and the first for over 30 years on Convention No. 138. It was timely to look at
developments in relation to the elimination of child labour and the wealth of information
provided on the implementation of the two Conventions was appreciated. It was clear that
child labour was a problem that affected the future of nations. Most children who were
engaged in work had little opportunity to pursue their education and training, which meant
that in later life they would find it very difficult to obtain anything other than work
requiring low skill levels and offering low rates of remuneration. Action to combat child
labour should therefore be closely related to education and training measures. They noted
the many examples of the efforts made by ILO member States, in both law and practice,
but observed that the measures taken were often insufficient. In particular, legislation was
ineffective in prohibiting child labour in the informal economy, where it was most
prevalent. In certain countries, the legislation on child labour failed to cover such sectors
as domestic work, agriculture and commerce. Moreover, although one of the principal
means of enforcing the prohibition of child labour was through labour inspection, the
respective services often lacked the necessary material and human resources and specific
training. It should be recalled that the social partners had an important role to play in
combating child labour, but that employers, in particular, were often not sufficiently
consulted.
94. The Employer members called for an immediate end to the involvement of state
institutions in many of the worst forms of child labour, including the compulsory
recruitment of children into national armed forces, the compulsory mobilization of children
in the context of school programmes and the complicity of government officials in the
trafficking of children.
95. The Worker members acknowledged that significant progress had been made in a range of
countries, particularly in relation to the worst forms of child labour, and that many of the
time-bound programmes implemented had been effective. However, according to the 2010
Global Report, a very large number of children worldwide continued to work
(215 million), many under the age of 15 (153 million) and in hazardous forms of work
(116 million), particularly in the informal economy, agriculture and domestic work. The
Committee of Experts had rightly emphasized the new or additional risks arising out of the
globalization of the labour market, the ongoing problem of human trafficking, the
recruitment of child soldiers in conflict zones and the role of the Internet in encouraging
sex tourism and the sexual exploitation of children.
Equality, non-discrimination and
equal remuneration
96. The Employer members observed that discrimination at work was not only a violation of a
human right, but that it also hindered the development of workers and the utilization of
their full potential, and therefore constituted a barrier to the promotion of sustainable
enterprises. A diverse workforce enabled employers to recruit the most talented workers
from a broad pool of candidates and was accordingly beneficial to enterprises and enabled
the workforce to offer its whole range of experiences, perspectives and cultural
understanding. However, they observed that the lack of implementation of the antidiscrimination
Conventions was primarily related to societal perceptions based on
historical attitudes and stereotypes which were difficult to change and sometimes required
a long period of adaptation. In view of the consequences of anti-discrimination standards
on employers’ activities, they considered that the related policies should not place a burden
on enterprises which might impair their sustainability and their ability to create jobs.
19(Rev.) Part I/26
97. With regard to the principle of equal remuneration for work of equal value, the Employer
members underlined the importance of flexibility in the application of Convention No. 100
at the national level. It should be recalled that governments were entitled to use any
combination of means at their disposal for the application of the principle, although they
were not necessarily required to do more than legislate. The value of collective bargaining
in that respect was that it allowed workers and employers to take into account business and
employment needs, while drafting equal pay plans and anti-discrimination measures. With
reference to the concept of equal remuneration, they observed that the dilemma lay in the
fact that there was no generally agreed correct system for establishing the value of a job.
The comments of the Committee of Experts that factors such as skills, responsibility, effort
and working conditions were relevant in determining the value of jobs, and that the overall
value of a job could be determined only when all factors were taken into account, left a
certain ambiguity in the concept. Such ambiguity highlighted the difficulty of attempting to
create a “one-size-fits-all” definition of equal value, and suggested that greater discretion
should be allowed to make such determinations at the national level.
98. The Employer members added, with regard to the monitoring and enforcement of
Conventions Nos 100 and 111, that neither Convention required a shifting of the burden of
proof to the employer, which had proven to be an extremely heavy bureaucratic burden for
employers in countries where it existed. They emphasized that much had been done by the
business community to apply the principles of equality set out in the two Conventions,
especially through collective agreements, the adoption of voluntary codes of conduct,
wage mapping and action plans. They therefore called for consistent and flexible
anti-discrimination standards.
99. The Worker members welcomed the special attention paid by the Committee of Experts to
the wage gap between women and men, which could only be tackled if the factors
underlying segregation in the labour market were addressed at the same time. With regard
to Convention No. 111, they recalled that Article 1 of the Convention did not envisage any
specific restrictions and applied to any discrimination which had the effect of nullifying or
impairing equality of opportunity or treatment in employment or occupation. However, in
practice, many countries established limitative lists, or limited the scope of application to
their own nationals. It was becoming increasingly important to extend the scope of the
Convention to combat new forms of discrimination, such as genetic discrimination and
discrimination based on lifestyle choice. It was also important to prohibit discrimination
based on trade union activities and to establish specific protection measures, such as the
reversal of the burden of proof and employment protection through special judicial and
administrative procedures.
Final remarks
100. The Employer members thanked the Committee of Experts and were able to support 95 per
cent of the General Survey. They noted the rich discussion and the obvious interest in and
recognition of the importance of the fundamental Conventions.
101. The Worker members, with reference to the comments by the Employer members
concerning the absence of any reference in the General Survey to the concept of
sustainable enterprises, said that emphasis should also be placed on durable and decently
remunerated employment, the right to social protection in the broad sense of the term and
the guarantee of quality jobs that respected workers, their health, security and family
environment. All those rights depended on the effective application of the eight
fundamental Conventions and were beneficial for employers and governments through the
promotion of greater social cohesion.
19(Rev.) Part I/27
102. The Worker members re-emphasized the crucial nature of the right of freedom of
association and collective bargaining to the application of the other Conventions. The eight
fundamental Conventions dealt with human rights and were essential instruments for
developing democracy. Moreover, it was important to reaffirm that the right to strike was
clearly derived from Convention No. 87 and was an obligatory corollary of freedom of
association. The Committee of Experts was a technical body operating in accordance with
the principles of independence, objectivity and impartiality. It could therefore not modify
its jurisprudence in light of diverging and evolving points of view. In that respect, the
Committee of Experts had indicated in its report to the Conference in 1990:
The Committee has already had occasion to point out that its terms of reference do not
require it to give definitive interpretations of Conventions, competence to do so being vested
in the International Court of Justice by article 37 of the Constitution of the ILO. Nevertheless,
in order to carry out its function …, the Committee has to consider and express its views on
the content and meaning of the provisions of Conventions and to determine their legal scope,
where appropriate. It therefore appears to the Committee that, in so far as its views are not
contradicted by the International Court of Justice, they are to be considered as valid and
generally recognised. … The Committee considers that the acceptance of the above
considerations is indispensable to maintenance of the principle of legality and, consequently
for the certainty of law required for the proper functioning of the International Labour
Organisation.
103. The Worker members, turning to the substance of the General Survey, strongly endorsed
the appeal for special attention to be devoted to vulnerable categories of workers, notably
domestic workers, migrant workers and informal sector and agricultural workers, and to
the growing problems they faced in exercising their fundamental rights and freedoms at
work. Concerning atypical forms of work, the Worker members requested for a tripartite
meeting of experts to be organized on the subject by the ILO. With regard to the
elimination of all forms of forced labour and, although Conventions Nos 29 and 105 were
among the most widely ratified, they recalled that various forms of forced or compulsory
labour continued to exist. Governments should therefore develop a comprehensive juridical
policy framework to combat all forms of forced labour, which not only established
punitive measures, but also encompassed the protection of victims and compensation for
the damage suffered. They added that the fundamental principle of gender equality and the
elimination of discrimination in employment was a human right to which all men and
women were entitled, and that it had an important bearing on the exercise of all other
rights. A discussion should perhaps be held on new forms of violation of equality, with a
view to the possible development of a modern instrument reflecting changes in society and
comprising a list of new forms of discrimination and suggestions as to how they might be
remedied.
104. In conclusion, the Worker members encouraged the ILO to pursue its campaign to promote
the ratification and observance of the fundamental Conventions with a view to
establishing, by 2015, a social framework that was conducive to peace, stability, economic
development, prosperity and social justice.
D. Compliance with speocibfilcig ations
105. The Chairperson explained the working methods of the Committee for the discussion of
cases of serious failure by member States to respect their reporting and other
standards-related obligations.
106. The Employer members indicated that the supervisory system depended on reports by the
governments on compliance with Conventions. The system could not function without
their regular submission. They noted the institutional and infrastructural constraints due,
19(Rev.) Part I/28
for instance, to political unrest, which resulted in lack of human and financial resources
and communications between ministries. The Office could provide relevant technical
assistance and hoped that the governments would avail themselves of this possibility. They
stated that the governments had to consider their responsibility for reporting upon
consideration of ratifying Conventions. The group observed a general improvement
compared to last year in the situation of discharge by member States of their reporting
obligations under articles 22 and 35 of the ILO Constitution, as indicated in the General
Report of the Committee of Experts. They, however, emphasized that further efforts were
needed.
107. The Worker members emphasized the fact that the obligation to send reports before the
deadline and with useful information had to be respected by all governments. The
regularity of reporting and the quality of replies influenced greatly the work of the
Committee of Experts. If the reports were of high quality, the supervisory mechanism
could attain its objectives, which was to the maximum benefit of workers and the defence
of their rights. The progress observed at the moment as regards sending reports was
insufficient and the governments concerned had to take all measures necessary to fulfil
their obligations in this regard.
108. In examining individual cases relating to compliance by States with their obligations under
or relating to international labour standards, the Committee applied the same working
methods and criteria as last year.
109. In applying those methods, the Committee decided to invite all governments concerned by
the comments in paragraphs 31 (failure to supply reports for the past two years or more on
the application of ratified Conventions), 37 (failure to supply first reports on the
application of ratified Conventions), 40 (failure to supply information in reply to
comments made by the Committee of Experts), 89 (failure to submit instruments to the
competent authorities), and 98 (failure to supply reports for the past five years on
unratified Conventions and Recommendations) of the Committee of Experts’ report to
supply information to the Committee in a half-day sitting devoted to those cases.
Submission of Conventions, Protocols and
Recommendations to the competent authorities
110. In accordance with its terms of reference, the Committee considered the manner in which
effect was given to article 19, paragraphs 5–7, of the ILO Constitution. These provisions
required member States within 12, or exceptionally 18, months of the closing of each
session of the Conference to submit the instruments adopted at that session to the authority
or authorities within whose competence the matter lies, for the enactment of legislation or
other action, and to inform the Director-General of the ILO of the measures taken to that
end, with particulars of the authority or authorities regarded as competent.
111. The Committee noted from the report of the Committee of Experts (paragraph 87) that
considerable efforts to fulfil the obligation to submit had been made in certain States,
namely: Cape Verde, Central African Republic, Kenya, Mongolia and Qatar. In addition,
the Conference Committee received information about the submission to parliaments from
many governments and in particular from Cambodia, The former Yugoslav Republic of
Macedonia, Turkmenistan and Uzbekistan as well as the ratification of the Maritime
Labour Convention, 2006, by Saint Kitts and Nevis; and the Promotional Framework for
Occupational Safety and Health Convention, 2006 (No. 187), by Togo.
19(Rev.) Part I/29
Failure to submit
112. The Committee noted that in order to facilitate its discussions, the report of the Committee
of Experts mentioned only the governments which had not provided any information on
the submission to the competent authorities of instruments adopted by the Conference for
seven sessions at least (from the 90th Session in June 2002 to the 99th Session in
June 2010, because the Conference did not adopt any Conventions and Recommendations
during the 93rd (2005), 97th (2008) or 98th (2009) Sessions). This time frame was deemed
long enough to warrant inviting Government delegations to the special sitting of the
Conference Committee so that they may explain the delays in submission.
113. The Committee noted the regrets expressed by several delegations at the delay in providing
full information on the submission of the instruments adopted by the Conference to
parliaments. Some governments had requested the assistance of the ILO to clarify how to
proceed and to complete the process of submission to national parliaments in consultation
with the social partners.
114. The Committee expressed great concern at the failure to respect the obligation to submit
Conventions, Recommendations and Protocols to national parliaments. It also recalled that
the Office could provide technical assistance to facilitate compliance with this
constitutional obligation.
115. The Committee noted that 33 countries were still concerned with this serious failure to
submit the instruments adopted by the Conference to the competent authorities, that is,
Bahrain, Bangladesh, Belize, Colombia, Comoros, Congo, Côte d’Ivoire, Democratic
Republic of the Congo, Djibouti, Dominica, Equatorial Guinea, Ethiopia, Fiji,
Georgia, Guinea, Haiti, Iraq, Ireland, Kyrgyzstan, Libya, Mozambique, Papua New
Guinea, Rwanda, Saint Lucia, Sao Tome and Principe, Seychelles, Sierra Leone,
Solomon Islands, Somalia, Sudan, Suriname, Tajikistan and Uganda. The Committee
hoped that appropriate measures would be taken by the governments and the social
partners concerned so that they could bring themselves up to date, and avoid being invited
to provide information to the next session of this Committee.
Supply of reports on ratified Conventions
116. In Part II of its report (Compliance with obligations), the Committee had considered the
fulfilment by States of their obligation to report on the application of ratified Conventions.
By the date of the 2011 meeting of the Committee of Experts, the percentage of reports
received was 67.8 per cent (compared with 67.9 per cent for the 2010 meeting). Since then,
further reports had been received, bringing the figure to 77.4 per cent (as compared with
77.3 per cent in June 2011, and 77.6 per cent in June 2010).
Failure to supply reports and information on
the application of ratified Conventions
117. The Committee noted with regret that no reports on ratified Conventions had been supplied
for the past two years or more by the following States: Chad, Djibouti, Equatorial
Guinea, Grenada, Nigeria, Sierra Leone and Somalia.
118. The Committee also noted with regret that no first reports due on ratified Conventions had
been supplied by the following countries:
19(Rev.) Part I/30
State Conventions Nos
Bahamas – since 2010: Convention No. 185
Equatorial Guinea – since 1998: Conventions Nos 68, 92
Guinea-Bissau – since 2010: Convention No. 182
Kazakhstan – since 2010: Convention No. 167
Kyrgyzstan – since 1994: Convention No. 111
– since 2006: Conventions Nos 17, 184
– since 2009: Conventions Nos 131, 144
– since 2010: Conventions Nos 97, 157
Nigeria – since 2010: Convention No. 185
Sao Tome and Principe – since 2007: Convention No. 184
Seychelles – since 2007: Conventions Nos 147, 161, 180
United Kingdom (St Helena) – since 2010: Convention No. 182
Vanuatu – since 2008: Conventions Nos 87, 98, 100, 111, 182
– since 2010: Convention No. 185
119. It stressed the special importance of first reports on which the Committee of Experts based
its first evaluation of compliance with ratified Conventions.
120. In this year’s report, the Committee of Experts noted that 43 governments had not
communicated replies to most or any of the observations and direct requests relating to
Conventions on which reports were due for examination this year, involving a total of
537 cases (compared with 669 cases in December 2010). The Committee was informed
that, since the meeting of the Committee of Experts, 15 of the governments concerned had
sent replies, which would be examined by the Committee of Experts at its next session.
121. The Committee noted with regret that no information had yet been received regarding any
or most of the observations and direct requests of the Committee of Experts to which
replies were requested for the period ending 2011 from the following countries: Bahamas,
Barbados, Burkina Faso, Burundi, Chad, Comoros, Democratic Republic of the
Congo, Denmark (Greenland), Djibouti, Equatorial Guinea, Ghana, Grenada, Guinea,
Guyana, Haiti, Iceland, Ireland, Kazakhstan, Kiribati, Kyrgyzstan, Nigeria, Pakistan,
San Marino, Sao Tome and Principe, Sierra Leone and Slovakia.
122. The Committee noted the explanations provided by the governments of the following
countries concerning difficulties encountered in discharging their obligations:
Afghanistan, Bahrain, Burkina Faso, Chad, Denmark (Greenland), Iceland, Ireland,
Nigeria, Pakistan, Seychelles and Sudan.
Supply of reports on unratified Conventions
and Recommendations
123. The Committee noted that 160 of the 282 article 19 reports requested on fundamental
Conventions had been received at the time of the Committee of Experts’ meeting. This is
56.23 per cent of the reports requested.
124. The Committee noted with regret that over the past five years none of the reports on
unratified Conventions and Recommendations, requested under article 19 of the
Constitution, had been supplied by: Afghanistan, Cape Verde, Guinea-Bissau, Samoa,
Sierra Leone, Somalia, Turkmenistan and Vanuatu.
19(Rev.) Part I/31
Communication of copies of reports to employers’
and workers’ organizations
125. Once again this year, the Committee did not have to apply the criterion: “the Government
has failed during the past three years to indicate the representative organizations of
employers and workers to which, in accordance with article 23(2) of the Constitution,
copies of reports and information supplied to the ILO under articles 19 and 22 have been
communicated”.
Application of ratified Conventions
126. The Committee noted with particular interest the steps taken by a number of governments
to ensure compliance with ratified Conventions. The Committee of Experts listed in
paragraph 61 of its report new cases in which governments had made changes to their law
and practice following comments it had made as to the degree of conformity of national
legislation or practice with the provisions of a ratified Convention. There were 72 such
cases, relating to 54 countries; 2,875 cases where the Committee of Experts was led to
express its satisfaction with progress achieved since it began listing them in 1964. These
results were tangible proof of the effectiveness of the supervisory system.
127. This year, the Committee of Experts listed in paragraph 64 of its report, cases in which
measures ensuring better application of ratified Conventions had been noted with interest.
It noted 325 such instances in 130 countries.
128. At its present session, the Conference Committee was informed of other instances in which
measures had recently been or were about to be taken by governments with a view to
ensuring the implementation of ratified Conventions. While it was for the Committee of
Experts to examine these measures, the present Committee welcomed them as fresh
evidence of the efforts made by governments to comply with their international obligations
and to act upon the comments of the supervisory bodies.
Specific indications
129. The Government members of Afghanistan, Bahrain, Bangladesh, Burkina Faso, Cape
Verde, Chad, Colombia, Congo, Denmark (Greenland), Ethiopia, Ghana, Guinea,
Guyana, Iceland, Ireland, Nigeria, Pakistan, Papua New Guinea, Seychelles, Sudan,
Suriname and Uganda had promised to fulfil their reporting obligations as soon as
possible.
Special sitting concerning the application by Myanmar
of the Forced Labour Convention, 1930 (No. 29)
130. The Committee held a special sitting concerning the application by Myanmar of
Convention No. 29, in conformity with the resolution adopted by the Conference in 2000.
A full record of the sitting appears in Part Two of the report.
Participation in the work of the Committee
131. The Committee wished to express its gratitude to the 43 governments which had
collaborated by providing information on the situation in their countries.
19(Rev.) Part I/32
132. The Committee regretted that, despite the invitations, the governments of the following
States failed to take part in the discussions concerning their countries and the fulfilment of
their constitutional obligations to report: Bahamas, Barbados, Belize, Burundi,
Comoros, Côte d’Ivoire, Democratic Republic of the Congo, Djibouti, Dominica,
Equatorial Guinea, Fiji, Georgia, Grenada, Guinea-Bissau, Haiti, Iraq, Kazakhstan,
Kiribati, Kyrgyzstan, Libya, Mongolia, Mozambique, Rwanda, Saint Lucia, Samoa,
San Marino, Sao Tome and Principe, Sierra Leone, Slovakia, Solomon Islands,
Somalia, Tajikistan, Turkmenistan, United Kingdom (St Helena) and Vanuatu. The
Committee decided to mention the cases of all these States in the appropriate paragraphs of
its report and to inform them in accordance with the usual practice.
133. The Committee noted with regret that the governments of the States which were not
represented at the Conference, namely: Bahamas, Belize, Dominica, Equatorial Guinea,
Grenada, Guinea-Bissau, Saint Lucia, Samoa, Somalia and Vanuatu were unable to
participate in the Committee’s examination of the cases relating to them. It decided to
mention these countries in the appropriate paragraphs of this report and to inform the
governments, in accordance with the usual practice.
E. Discussion of the list of individual cases
to be considered by the Committee
134. With regard to the adoption of the list of individual cases for discussion by the Committee
in the second week, the Worker members emphasized the fact that only the Workers and
the Government representatives were present at the sitting on Friday, 1 June 2012, after
8.30 p.m. They wished to provide some explanation regarding the attempts made in
reaching an agreement on a list of 25 individual cases. Unfortunately this had not been
possible, since the conditions put forward by the Employer members were unacceptable.
The Worker members considered that it was not their responsibility to explain those
conditions. As to the substance of the matter, the issue raised by the Employer members
was identical to the one that they had referred to previously, namely that the Committee of
Experts had taken the initiative to provide explanations concerning the right to strike in the
General Survey, and that was something that the Employer members could not accept. The
Worker members considered, however, that the Committee of Experts worked in complete
autonomy. As the Committee of Experts had emphasized in its annual report, it was “an
independent body composed of legal experts charged with examining the application of
ILO Conventions and Recommendations by ILO member States”. It was not possible to
assess its independence in a different manner than had previously been done. The fact was
that it had not been possible to reach consensus between the Employer members and the
Worker members. The Worker members would have liked to propose a list including cases
to which they attached particular importance and which raised serious issues for the
workers of the countries concerned. It had unfortunately proven impossible to reach an
agreement with the Employer members regarding such a list. The Worker members
deplored the situation because it showed that tripartism and social dialogue did not always
enable positive and constructive solutions to be found. Consequently, they had looked for a
practical solution to this impasse and had proposed a “default list”, in other words a list
drawn up in the absence of one negotiated and approved by the groups. They had proposed
starting with the examination of the double footnoted cases, following the French
alphabetical order from the letter K onwards: Mauritania (Convention No. 81); Dominican
Republic (Convention No. 111); Senegal (Convention No. 182); Fiji (Convention No. 87);
and Guatemala (Convention No. 87). The Worker members had also proposed to examine
20 cases following the same alphabetical order on the basis of the preliminary list. The
Worker members reaffirmed that this list was not the one they would have preferred and
that it was a “default list”. They expressed the wish to have the possibility of making other
comments at the start of the examination of individual cases. In conclusion, the Worker
19(Rev.) Part I/33
members emphasized the fact that they had not created this situation. They felt that they
were victims of a situation which had been shaped by others, one in which they had not
played an active role.
135. The Chairperson invited the Government members to make comments regarding the
statement of the Worker members and the situation faced by the Committee.
136. The Government member of Zimbabwe informed the Committee that it would not be
appearing before the Committee in the case of a “default list”.
137. The Government member of the United States stated that she was beyond disappointment
and foresaw that many other governments would wish to make statements at a later stage.
She wondered whether the fact that the Employer members were no longer present in the
room, meant that they would not participate in the discussion of a “default list”.
138. The Government member of Brazil, speaking on behalf of GRULAC, expressed his deep
frustration about the whole situation, which was offensive and disrespectful to
governments. He recalled the statements that had been previously made by the
Government group and GRULAC underlining the importance of having a list of individual
cases on time, and considered that still not having such a list severely hampered the
constitutional functions of the ILO.
139. The Government member of Greece supported the statement made by the Government
member of Brazil and, noting that the Employer members were not present, requested
indications from the Office on the way forward.
140. The Worker members requested clarifications regarding the manner in which the outcome
of the Committee’s discussion would be reported to the Recurrent Item Committee. In the
absence of joint conclusions, the groups could consider submitting their conclusions
separately.
141. The representative of the Secretary-General in reply to the various questions raised,
indicated that the Office had first to reflect on possible ways forward. In the afternoon, the
Committee had agreed on the brief summary of the discussion on the General Survey. The
revised version of this document (document D.8(Rev.), which included the comments
made by the Worker and Employer Vice-Chairpersons, would be communicated to the
Recurrent Item Committee on Saturday afternoon, 3 June 2012. The Committee had not
agreed on a proposed outcome but it was already scheduled in the programme that the
Officers would brief the Recurrent Item Committee on the outcome. The Office had not
been informed that the Employer members would leave the room and had been taken by
surprise. The Government members had been extremely patient and she thanked them for
this, as well as for their respect for the institution.
142. On Saturday afternoon, with regard to the ongoing efforts to prepare a mutually agreeable
list of cases, the Chairperson announced that he had taken the initiative to convene an
informal meeting with all regional coordinators and the Vice-Chairpersons but
unfortunately this meeting had produced no results. He also indicated that the different
questions put forward by several Government members regarding the manner in which the
Committee would proceed with its work would be answered at the Committee’s next
sitting on Monday, 4 June.
143. The Government of Brazil, speaking on behalf of GRULAC, said that they had held a
meeting at which GRULAC reiterated its commitment to the supervisory system but noted
that once again the list of individual cases was not ready in time. He repeated the group’s
view that the fact that the list was not ready was offensive and disrespectful vis-à-vis the
19(Rev.) Part I/34
governments. Its position was therefore that, if no list was presented before the end of the
day (and he was referring to a complete list), then the group did not want any list at all.
The situation that had arisen showed that the procedures needed to be reviewed by the
Governing Body. He concluded by reiterating GRULAC’s firm support for the respect of
the plan of work and for the position of the Government group.
144. On Monday, 4 June 2012, the Employer and Worker members, as well as several
Government members, made the following statements.
145. The Employer members provided the following explanations concerning the situation that
had arisen with regard to the list of cases. In relation to the interpretation of the right to
strike, they referred to the publication of the Committee of Experts’ General Survey on the
eight ILO fundamental Conventions in advance of the 101st Session of the International
Labour Conference. The General Survey was a guide to the Conference Committee to
assist it with its work when supervising the application of ratified labour standards by
member States of the ILO. The General Survey, like the report of the Committee of
Experts, was not an agreed or authoritative text of the ILO tripartite constituents, namely,
the Governments, Employers and Workers. Outside of the ILO, this important distinction
was either misunderstood or forgotten and General Surveys were seen as being the position
of the ILO, which they were not. The Employer members had, for many years, consistently
stated this position concerning General Surveys and the reports of the Committee of
Experts. The role of the International Labour Office was to serve its tripartite constituents
to the best of its abilities. The ILO was the Governments, Workers and Employers. Both
the General Survey and the report of the Committee of Experts were created with the
assistance of the International Labour Office. The Governments, Employers and Workers
were not involved in their creation or publication. The first opportunity for the
Governments, Employers and Workers to consider these publications as groups was at the
International Labour Conference.
146. The eight fundamental Conventions were important not only within the ILO, but also
because other international institutions regularly used them in their activities. The
fundamental Conventions were embedded in the UN Global Compact, the OECD
Guidelines for Multinational Enterprises, and the UN Human Rights Council’s “Protect,
Respect and Remedy” framework. The ILO’s supervisory machinery related to member
States only, not to businesses, so it was vital that, when other international institutions used
the fundamental Conventions, such use was correct. A correct understanding of the
fundamental Conventions was imperative for businesses because they were used in
international framework agreements, transnational company agreements and in European
framework agreements with global trade unions, where they were often not defined.
Accordingly, that year’s General Survey had particular contextual importance for the
Employer members. Within the General Survey, the commentary on Convention No. 87
concerning freedom of association included interpretations by the Committee of Experts on
the exercise of the right to strike.
147. Interpretations of a right to strike by the Committee of Experts were fundamentally
unacceptable to the Employer members. The Employer members stated that they had made
it clear last week to the Conference Committee that they were of the view that the
Committee of Experts’ position regarding the right to strike outlined in that year’s General
Survey did not reflect the views of the Employer and Worker members in the Conference
Committee. The Employers’ group had a long-held policy position in the ILO on this
matter. They had repeatedly expressed their opposition to any attempt by the Committee of
Experts to interpret the ways by which the right to strike, where it was recognized in
national law, could be exercised. This issue was complicated by the fact that Convention
No. 87 itself was silent on the right to strike and, in the view of the Employer members,
was therefore not an issue upon which the Committee of Experts should express any
19(Rev.) Part I/35
opinion. The mandate of the Committee of Experts was to comment on the application of
Convention No. 87 and not to interpret a right to strike into Convention No. 87. The
General Survey was simply meant to be used by the Conference Committee to inform its
work, leaving it for the tripartite constituents to determine, where consensus existed, the
position of the ILO, with regard to the supervision of Conventions. Further, under
article 37 of the ILO Constitution, only the ICJ could give a definitive interpretation of
international labour Conventions. If the Constitution were to be applied, given the absence
of any reference to a right to strike in the actual text of Convention No. 87, then
internationally accepted rules of interpretation required Convention No. 87 to be
interpreted without a right to strike. In addition, it should be noted that the principle of
freedom of association contained in Convention No. 87 had a separate supervisory
procedure: namely the Committee on Freedom of Association (CFA). The Employer
members had also objected for many years about the use of CFA cases by the Committee
of Experts when examining Convention No. 87, the use of CFA cases when interpreting
the right to strike, and the use of the Committee of Experts’ interpretations of the right to
strike in the CFA. The Employer members were critical of the confusion and lack of
certainty that the supervisory system created.
148. In the view of the Employer members, Convention No. 87 cases that concerned a
nationally recognized right to strike should only be supervised by the CFA only in order to
ensure certainty and coherence. They objected to any view that the Committee of Experts’
interpretations of the right to strike were legal jurisprudence, as the Committee of Experts
did not have a judicial mandate within the ILO. The Committee of Experts did not have a
determinative role within the ILO supervisory machinery. The Committee of Experts did
not supervise labour standards; rather the ILO tripartite constituents did. Referring their
interpretations of the right to strike within Convention No. 87 to the ICJ was therefore
inappropriate. The CFA produced recommendations to the Governing Body for adoption.
The Governing Body did not have a judicial role either; it also did not supervise labour
standards. For the same reason, referring the CFA recommendations to the ICJ was also
inappropriate.
149. The interpretation of the right to strike was important because the Employer members
asserted that it was for national governments to establish their own rules/practices
concerning the right to strike when considering how to resolve national breakdowns in
industrial relations. It was important in the context of the international human rights debate
that a correct use of Convention No. 87 was made, because an incorrect inclusion of the
right to strike risked the Committee of Experts’ interpretation of the right to strike
becoming an internationally accepted human right to strike, which would restrict the ability
of national governments to define their right to strike. This restricted the role of
governments in, for example, the circumstances when a lawful strike could be called and
the definition of essential services. This was unacceptable to the Employer members.
There was no legal requirement for governments that had ratified Convention No. 87 to
address the Committee of Experts’ interpretation of the right to strike. The Employer
members could not agree to the Committee of Experts’ interpretation of the right to strike
because of the risk that it would be misused.
150. Regarding this year’s Conference, the Employer members stated that, given their
longstanding objections to the Committee of Experts’ interpretation of the right to strike,
they sought to clarify the mandate of the Committee of Experts with regard to the General
Survey. They brought this important issue to the attention of the Worker members and,
together, they had negotiated and formulated the following draft clarification: “The
General Survey is part of the regular supervisory process and is the result of the Committee
of Experts’ analysis. It is not an agreed or determinative text of the ILO tripartite
constituents.” The Employer members’ proposal was that the International Labour Office
would be instructed to immediately insert the clarification in future hard copy and ILO
19(Rev.) Part I/36
website publications of this year’s General Survey and the report of the Committee of
Experts. It was not possible to simply remove the Committee of Experts’ interpretations as
the International Labour Office had already published the General Survey containing the
Committee of Experts’ interpretation of the right to strike. They had made it clear that
without the abovementioned clarification in respect to the General Survey, in order for the
Employer members’ consideration of the cases in the Committee to be coherent, they could
not accept the supervision of Convention No. 87 cases that included interpretations by the
Committee of Experts regarding the right to strike. After much confidential negotiation
with the Worker members, regrettably, those negotiations had irretrievably broken down.
The Employer members considered, in this connection, that it was inappropriate to lift the
veil on those negotiations, as they were and remained of a confidential nature.
151. The Employer members highlighted that on Friday, 1 June 2012, after the negotiations had
irretrievably broken down, the Employer Vice-Chairperson returned to the Committee
room, as he was informed that the Worker Vice-Chairperson had done so. His position was
that the negotiations had failed so there was confusion concerning why it was necessary to
return to the Committee room. During the period he was in the room, he observed officials
of the International Labour Office in discussions with Worker and Government members
of the Committee. It was important to be aware that Employer members had made it clear
that the list of cases to be supervised could only be agreed in direct negotiation with the
Worker members. The Government members could not be involved as they had a conflict
of national interest. The International Labour Office could not be involved as it was not an
ILO constituent and had to be impartial. Members of the Employers’ group had been
waiting in the Committee room from 5 p.m. awaiting confirmation concerning the
negotiations. The Employer Vice-Chairperson informed the Employer members that the
negotiations had failed. At 8.31 p.m., when the meeting was 91 minutes past its scheduled
close of 7 p.m., as no one from the International Labour Office had communicated to him
what was happening, he had then informed the Deputy Director of the International Labour
Standards Department that the Employer members were leaving the Committee room for
the evening. The Employer members had then left. There had been no meeting of the
Conference Committee occurring at the time so it had not been a walk-out. The Employer
members had left the room after the scheduled close and while private meetings involving
others had been happening, of which the Employer members had known nothing about.
Many other delegates had either left or were leaving. The Employer members had attended
the next scheduled meeting.
152. On Saturday, 2 June 2012, following a request from the Government regional coordinators
for an informal meeting with the Employer and Worker Vice-Chairpersons, the Employer
Vice-Chairperson had attended the informal meeting and explained that he would not
negotiate a list of cases with the involvement of the Government members. He had
confirmed that he would provide a statement of the Employer members’ position with
regard to the failed negotiations for a list of cases.
153. The Employer members then proposed a possible way forward for the Conference
Committee, and formulated the following suggestions:
– The Employer members remained supportive of the application of labour standards
provided there was respect for genuine tripartism of the ILO constituents.
– The proposed clarification to clearly appear in all International Labour Office and
Committee of Experts documentation prepared for a debate and discussion by the
International Labour Conference or the Governing Body.
– An urgent review of the working methods and mandate of the international labour
standards supervisory system (including its interaction with other areas of the ILO),
19(Rev.) Part I/37
including the Committee of Experts, the Conference Committee and the International
Labour Office, was required.
– The Employer and Worker Vice-Chairpersons to meet with the Committee of Experts
before they started their work each year and for the Committee of Experts to have far
greater interaction with employers’ and workers’ bureaux within the ILO in order to
strengthen cooperation and governance. The Committee of Experts should have a
tripartite agreed framework in which to do its work. In past years, the Employer
members had proposed changes to the format of reports of the Committee of Experts
with a view to have tripartite views better reflected. More precisely, the Employer
members proposed that there should be possibilities for Employers, Workers and
Governments to set out in the reports of the Committee of Experts their views on
standards supervision-related issues, including on the application and interpretation of
particular Conventions.
– An urgent review of the International Labour Standards Department of the
International Labour Office was required. The role of ILO officials required respect
for the tripartism and impartiality in their work. Their role was to support and
facilitate the work of the ILO tripartite constituents, which required neutrality and
balance. It required staffing with politically neutral international civil servants that
supported the work of the Committee of Experts, not the Committee of Experts
supporting the work of the Office. Neutrality would help create mature and respectful
international industrial relations between the Governments, Employers and Workers.
– Respect for the relationships with other international agencies to ensure that the views
of the ILO were those of the tripartite constituents.
154. In conclusion, the Employer members stated that the ILO was now facing a multifaceted
crisis concerning the interpretation of the right to strike in connection with Convention
No. 87. It was not acceptable for anyone to be confused or misled as to the true status of
any ILO text simply because it bore its logo or was silent as to its proper status. This was
now more than just an issue involving the General Survey as it affected the Convention
No. 87 cases to be supervised in the Conference Committee. The absence of an express
right to strike in Convention No. 87 meant that the Committee of Experts was effectively
making policy, which was outside of their mandate. Policy-making was the exclusive
domain of the Governments, Employers and Workers. The Committee of Experts could
advise on application, not determine application on behalf of the ILO and certainly not
determine new rights and obligations regarding a right to strike within Convention No. 87.
It was important that all Governments, Employers and Workers alerted their constituents
and relevant authorities as to the true status of the Committee of Experts’ interpretation of
the right to strike.
155. The Worker members emphasized that the situation seen today had never before been
experienced in the history of the Committee on the Application of Standards. They added
that the present statement was the outcome of long discussions in the Workers’ group of
the Committee which, alarmed by the course of events, had called for a statement that was
clear and strong, but nevertheless constructive. In the view of the Worker members, the
Committee needed to proceed with its work and the cases should be discussed without
delay, as requested vigorously by the Government members present on Friday evening and
Saturday afternoon.
156. The Worker members said that a rereading of the records of the Committee for previous
years showed that for a few years the issue of the choice of individual cases had become a
very difficult exercise, and not only in view of developments in the political and economic
situation in many member States. Considerations related to the supervisory machinery
19(Rev.) Part I/38
itself had been raised by the Employer members, who had started to express the wish to
weaken the supervisory methods in 2010. Yet, in 2009, the spokesperson for the
Employers’ group had indicated the following: “The Employer members pointed out that
the participation of the Chairperson of the Committee of Experts in the work of the
Committee reflected the essential fact-finding role of the Committee of Experts in relation
to the work of the Conference Committee. Without the help of the Committee of Experts,
this Committee could not function.” (Record of Proceedings No. 16, paragraph 42). This
was clearly true and, as recalled the previous Friday by Mr Yokota, Chairperson of the
Committee of Experts, the Committee of Experts took everything into account when
drawing up its reports. It had a global vision of the information provided and on that basis
it carried out an analysis of law and practice.
157. The Worker members emphasized that in 2010 the Employer members had mounted a first
major challenge against a large number of principles that were commonly accepted and
recognized as guarantees of the Committee’s work as a supervisory body of the application
of ratified ILO Conventions. The Employer members had clearly indicated, on several
occasions, that in their view the tripartite governance of the supervision of the application
of standards was compromised, or at least that there was a faulty line in this process of
tripartite governance.
158. The Worker members had emphasized in 2011 that the list had to be drawn up together,
that is with the Employer members, and that it was together that they had to reach a
compromise, as a veto had no place in the process, either directly (by rejecting a particular
country) or indirectly (by establishing restrictive rules). They had specified that the rule
could not be that one of the parties always had to give way, and it was to be regretted that
methods of work based on consensus were increasingly difficult to achieve.
159. The Worker members affirmed that this year they had been very brutally confronted by the
fact that the Employer members were contesting the mandate of the Committee of Experts,
essentially in relation to the interpretation of the right to strike under Convention No. 87. It
should be clarified that that this challenge to the General Survey and the mandate of the
Committee of Experts only came from the Employer members, who had no right to make
comments in the name of this Committee against the supervisory system. The direct
consequence had been that an explicit veto had been expressed in relation to the possible
examination of individual cases in which the right to strike might be raised during the
discussion.
160. The Worker members considered that the confrontation had been brutal for the following
reasons. As happened every year, significant preparatory work had been carried out within
the Workers’ group. The preparatory work was carried out seriously because, for the
Worker members, the discussion of the most serious individual cases at the Conference
was a unique occasion. It was the only time that they could describe openly and without
fear the numerous violations of the rights accorded to them by ILO standards. The report
of the Committee of Experts had been published on 28 February 2012. The General Survey
had been published on the same date. The electronic versions of those documents had been
published on the Web on 2 March 2012. Yet, during the 313th Session of the Governing
Body, held in March 2012, the Employers had not at any time given an indication of any
possible criticisms concerning the role of the Committee of Experts, nor on it exceeding its
mandate in its interpretation of the right to strike. It had only been on Friday, 1 June 2012,
during the discussion of the General Report, that the Employer members had clearly
indicated, in the context of the present Committee, their vision on this divergence of views.
However, based on the published reports, the preparatory work of the Workers’ group had
commenced in March 2012 in regional coordination meetings, and then in an international
meeting held in Brussels on 2 April. It had culminated in May in a series of open, frank
and sincere confidence building contacts with the spokesperson of the Employer members
19(Rev.) Part I/39
of the Committee. On that occasion, without any reservations, he had put forward his
group’s list of cases, with no comment on the mandate of the Committee of Experts, or on
any reservations concerning the discussion of Convention No. 87. A preliminary list of 49
cases had accordingly been drawn up and forwarded by the ILO to governments on 8 May
2012.
161. In the Worker members’ view of the approach to the work of supervising the application of
standards, they considered very sincerely that the contribution of the Employers’ group,
through their spokesperson, who had made suggestions for cases to be included in the
provisional list, had meant that preparatory work similar to that of the Workers’ group had
been undertaken. That was particularly the case as it was known that the list was to be
forwarded to governments.
162. The Worker members were very willing to recognize that in certain countries the rights of
employers were also violated and that the Employer members valued more technical
subjects. Clearly, there was no obligation to engage in preparatory work, as understood by
the Worker members. Each group was free to organize its own work. However, taking the
supervisory machinery seriously required preparatory work, for the members themselves
and for those involved in the discussion process. That was why the Worker members were
certain that they could work constructively as soon as they arrived at the Conference. They
had never imagined that the drawing up of a final list of 25 cases to be discussed in the
Committee would be as dramatic as it had been this year. They had never thought that they
would be driven to make the proposal that they had put forward on Friday evening.
163. The Worker members emphasized that their objective had clearly been to come together
and, on a basis of consensus, to place emphasis on the most serious cases and to give a
very clear signal to the governments on the list concerning the serious nature of their
failings. It was clear that coming up with a preliminary list of 49 cases had already been
very frustrating for many Worker members present in the Committee. Even though they
had understood that the case concerning their government would not be raised, many
colleagues had nevertheless made the journey to the Conference in Geneva, which was the
only forum in which their voices could be heard and where they could participate
effectively in the discussions.
164. The Worker members recalled that, as indicated by the Worker member of Colombia on
Friday: the process of drawing up the final list of cases had always been difficult, but the
list was not a spoil of war and did not require the taking of hostages, that wisdom always
prevailed and that an agreed list would certainly be presented to governments. Many of the
Workers’ group still expected such consensus, as a serious political indication of continued
belief in social dialogue, the functioning of the ILO supervisory procedures and therefore
in its standards.
165. The Worker members said that they had gained the impression that, for the Employer
members, the present session of the Committee on the Application of Standards had
already ended, that everything would return to normal tomorrow and that in 2013 work
would continue as if nothing had happened. However, reflection would be required on the
way forward. The Employer members had put forward proposals, but that was the task of
the Governing Body, which would have to consider the latest events without delay, as the
Conference Committee was not the place to discuss them. Being made aware of them
before the Conference would have made it possible for the Committee to go ahead with its
supervisory work, instead of creating a crisis situation that was prejudicial to everyone.
166. The Worker members stated that, more than anyone, they wanted to come through the
storm. Employers needed workers and their representatives, and should not forget that.
Without social peace, without counterparts, it would be the law of the jungle and no longer
19(Rev.) Part I/40
a question of productivity or growth. The Worker members wondered whether the
intention was to override the social pacts which governed industrial relations in many
countries.
167. The Worker members emphasized that governments were shocked, which was
understandable. But the Worker members were also shocked and were the losers: because
they had played by the rules of the game and, as early as March, certain colleagues had
already given up the hope of seeing their situation discussed out of solidarity with other
colleagues, to whom they had given priority; because they had been taken hostage in a socalled
struggle between the Employer members and the Committee of Experts; because the
discussion of the role of the Committee of Experts and its competence to give an
interpretation of the right to strike did not lie with the Committee on the Application of
Standards, but with the Governing Body; because, as a result of the sabotage of the
supervisory machinery, it was the rights of workers that were being disregarded; and
because workers and their families were the primary victims of the fact that the serious
situations that they were experiencing could not be discussed.
168. The Worker members raised the question of what the Employer members wished to gain
through this strategy that had been developed over time, and certainly since the
Committee’s work in 2010. On that occasion, the Worker members had already had to
react to the same attacks as those reiterated on this occasion, without warning, at the
beginning of the Committee’s work. The Worker members wondered if the Employer
members were seeking to finish the Committee of Experts, and if the Committee on
Freedom of Association would be the next victim. Yet it should be recalled that those
bodies were appointed through a tripartite procedure.
169. The Worker members recalled that, on Friday evening, in the absence of a negotiated list,
at the risk of shocking many Worker colleagues present in the room, the Worker Vice-
Chairperson had had to make a proposal to the Committee. That had been done for the
benefit only of the Government members, as the Employer members had left the room
without warning, even though the Chairperson had not adjourned the sitting. There had
been no negotiated list because the conditions that had been imposed by the Employer
members upon the Worker members were unacceptable. In the absence of a final list, the
Worker Vice-Chairperson had therefore proposed that 25 cases should be discussed from
the long list forwarded to governments on 8 May. A first group would be composed of the
five cases with double footnotes. A second group would be made up of 20 cases taken
from the long list, starting from the letter K and following the French alphabetical order.
This proposal was based on the working methods that had been agreed to in document D.1.
The selected method for drawing up the list, based on the pure logic of the French
alphabetical order, had been and remained a very delicate matter. It should however be
recalled that the list, whether long or short, was one of the elements of the supervisory
system itself since, through the list, a clear signal was sent to governments that the
situation of non-compliance with ILO Conventions could not continue on their territory.
Inclusion on the long list was an indication that pressure was mounting and that the
international community was aware of the gravity of the situation of disregard for workers’
rights. It had been the only solution to go forward with dignity.
170. Following those explanations, the Worker members wished to put on record that what was
occurring in the Committee was not their will. At no time had there been agreement on the
list, as some were trying to make people believe. At no time had the Worker members
broken off the dialogue or acted in bad faith. The Worker members were in no way
responsible for the challenges raised by the Employer members concerning the role of the
Committee of Experts and their authority to interpret the links between Convention No. 87
and the right to strike. Moreover, they did not support such a challenge. The Worker
members had not been informed of those types of arguments before the Conference, during
19(Rev.) Part I/41
the Governing Body in March, nor during the contacts to draw up the preliminary list, or at
any other time or by any means.
171. The Worker members concluded that the imposition was not acceptable of such purely
exorbitant conditions which went beyond the competence of this Committee, as they were
of a political nature. They could not accept such arbitrary edicts based on factors over
which, within the Committee, they had no power and which would have the consequence
that the cases selected in May might never be discussed. All of that was to be regretted and
gave rise to immense wastage: many trade unions and employers’ organizations invested
time and money in the work of the Committee, as did governments. They could not be sent
home empty-handed. The wastage was particularly incomprehensible in view of the calls
made by the Employer members for the ILO to make greater savings. The Worker
members called on all parties to exercise wisdom and remained open to any solution that
was approved and obtained through constructive negotiation.
172. The Government member of Sudan, speaking on behalf of the Government members,
regretted that there was no list of individual cases to be discussed at the Committee on the
Application of Standards. He considered that a further discussion on the substantive issues
raised by the Employer and Worker members had to take place in an appropriate forum.
The speaker also considered that this situation clearly showed that there was a need to
review the working methods of this Committee.
173. The Government member of Pakistan, speaking on behalf of the Asia and Pacific group
(ASPAG), stated that his group valued very much the supervisory mechanism for
promoting and supervising ILO standards. For many years, through this system, the
governments had received necessary guidance from the social partners that had helped
them to overcome challenges in realizing ILO’s fundamental principles and values at work.
At the same time, governments also felt the need to further streamline the system to make
it efficient and fair. They felt that there was a need to establish criteria that allowed the
selection of cases by the social partners in a more objective and timely manner. Such a
reform would certainly help not only to bring transparency but also to establish sanctity
and efficacy of this supervisory system. He indicated that as a result of last year’s events
and developments during the proceedings of the Committee this year, such reform was
inevitable and had to be given priority. At the same time, ASPAG felt that unnecessary
delay in the finalization of the list of individual cases this year had caused immense
inconvenience for governments. ASPAG therefore called for this particular issue to be
addressed before handling individual cases in the Committee on the Application of
Standards in the future.
174. The Government member of Niger, speaking on behalf of the Africa group, supported the
analysis by the Government group of the absence of the list of individual cases and felt that
this regrettable situation highlighted the need to review the working methods for the
preparation of the list of cases, which needed more transparency and objective criteria. The
current situation should lead to urgent reflection on the revision of the whole of the
supervisory system for international labour standards. In the future, it would be essential to
communicate the list of individual cases well before the start of the work of the Conference
in order to enable the governments to prepare their replies. Lastly, in view of this year’s
delay, no list could be objectively examined during the current session of the Committee.
175. The Government member of Brazil, speaking on behalf of GRULAC, stated that GRULAC
had always been consistent in its position. Since July 2011, the group had been stating that
any repetition of the events that had occurred in the Committee at the 100th Session of the
Conference should be avoided and that the list should be published in accordance with the
plan of work, on the second day of the Committee’s session. This request, that deadlines be
respected, was repeated at the Governing Body in both November 2011 and March 2012.
19(Rev.) Part I/42
GRULAC had shown some flexibility regarding the publication of the list on the third day
of the Committee’s session, at the latest. On the fourth day of the Committee, in a display
of goodwill and flexibility, it had asked for the list to be published that day at the latest.
The group had shown consistency in its position and its commitment towards the ILO
supervisory system and the constitutional mandate of the Committee. It considered that the
current situation was totally unacceptable and stated that there was a need to review the
Committee’s procedures. The current degree of uncertainty was having a damaging effect
on its credibility. The preparation of the list was a prerogative of the social partners. As
with any prerogative, it had to be exercised with responsibility and with respect towards
governments. These procedures had shown a lack of respect towards governments once
again, since they had had no time to prepare or to participate in debates. In conclusion, the
speaker reiterated the need for respecting the deadline for the publication of the list and for
modifying the Committee’s procedures with a view to improving objectivity and
transparency and ensuring greater respect for the Government members.
176. The Government member of the United States, speaking on behalf of IMEC, indicated that
at the opening sitting of the Committee, IMEC had joined in a unified call by the
Government group for prompt adoption of the list of individual country cases. The
subsequent deadlock that had prevented the adoption of a list was totally without precedent
in the 85-year history of the Committee. It was both disappointing and distressing.
177. It was the firm, long-standing position of IMEC that the governments should not get
involved in the development of the list of cases. This position had not changed. For the
record, there had been no involvement of governments in the negotiations of the list of
cases, and at no time did the governments request to be part of them. The Conference
would need to understand that this problem had not been caused by governments.
178. Although governments did not participate in developing the list of cases, they were a key
component of this Committee. Governments ratified and implemented Conventions, and
then agreed to discuss issues of compliance with the Workers and Employers’ groups at
the International Labour Conference. The situation at this Conference had put governments
in an extremely difficult position, and IMEC regretted that at times there was a distinct
lack of courtesy shown towards them.
179. It was the prerogative of the social partners to agree to a final list of individual country
cases. While the social partners had the right to agree on the criteria for the list, IMEC did
not believe that it was appropriate for the Employer and the Worker members to make
agreement on a list conditional upon external issues on which governments had a role in
the discussion and decision-making process.
180. It was IMEC’s view that the role of the Committee on the Application of Standards was to
consider the Experts’ report on individual cases, and not to question the status of that
report. The issues that had been raised by the Employer members needed to be dealt with
in an appropriate forum, but IMEC did not consider that the Committee on the Application
of Standards was the appropriate one, and wished to request the ILO Legal Adviser to
explain the available options.
181. There were a number of reasons why IMEC was deeply distressed about the failure of the
social partners to adopt a list of individual country cases. First, the failure to adopt a list of
cases had prevented this Committee from executing the critically important work of
supervising countries in the application of labour standards as required by the ILO
Constitution and previous decisions of the International Labour Conference. Secondly, the
ILO supervisory system was unique and was an essential element of the Organization’s
mandate and mission. The ILO supervisory mechanisms had long been cited as the most
advanced and best functioning of the international system. Not only did the present
19(Rev.) Part I/43
situation reflect poorly on the Committee, but also it had serious ramifications for the ILO
supervisory system as a whole, and risked irreparable damage to the credibility of the
entire Organization.
182. IMEC had a long history of supporting the independence, impartiality and objectivity of
the Committee of Experts, as well as its autonomy. The group could understand that there
would be occasions when members or groups within the Committee on the Application of
Standards would have views that differed from those of the Committee of Experts, and all
members had the fundamental right to express those views. However, it was regrettable
that the events of the past few days had resulted in a situation that potentially had put the
credibility of the ILO and the supervisory system in jeopardy.
183. The question at this point was where this Committee would go. In this connection, IMEC
was encouraged that, in the previous week, the Chairperson of the Committee of Experts
specifically indicated in his presentation to this Committee a willingness to continue
constructive dialogue with this Committee on issues that were at the heart of this present
conflict. In addition, the question on the right to strike within the context of Convention
No. 87 was a long-standing issue which had not been resolved through tripartite dialogue
to date. IMEC noted that article 37 of the ILO Constitution provided that legal clarification
on such questions could be sought from the ICJ.
184. The speaker concluded by stating that governments needed to be involved in discussions
and decisions on issues other than the negotiation of the list, and in this regard, IMEC
welcomed the opportunity to work with the social partners to resolve the concerns raised
by the Employer members. IMEC wished to reiterate its strong commitment to the ILO
supervisory system and the role of the Committee on the Application of Standards. It was
also committed to moving forward in a positive, constructive manner in the spirit of
tripartism.
185. The Employer members stated that regretfully, from this point forward, they were working
on the basis that there would not be a list of individual cases this year. They also agreed
that there was a need for further discussions with regard to the issues that had been raised.
They recalled that the International Labour Conference was the supreme body of the ILO
and it was for that body to find a solution and that the matter should not be referred to the
Governing Body. There was a clear need to agree on the working methods of this
Committee and reforms were necessary. Moreover, they insisted on the fact that the
behaviour, actions and negotiations of the Employer members had been done in good faith.
The reiterated that the Employer members had always intended to respect the
governments’ time frames, and that the continued negotiations, which had extended past
the intended deadline of Thursday afternoon, were not meant to cause any discourtesy to
governments. When discussing the working methods, consideration should be given to
communication in view of the size of this Committee. Finally, they reiterated that they still
had a strong commitment to the Conference Committee and to genuine tripartism.
186. The Worker members emphasized the fact that they could not agree to the inclusion of a
disclaimer in the General Survey, which was the result of analyses undertaken by the
Committee of Experts. The Worker members considered that it was not the place of the
Committee on the Application of Standards and certainly not the Employer members and
Worker members alone to discuss such a disclaimer as a discussion of this kind fell within
the competence of all ILO constituents. This approach had been confirmed by many
governments. Nevertheless, without taking this into account, the Employer members
continued to insist on the insertion of such a disclaimer. The Worker members might
eventually agree to a joint statement on the divergence of views on the role and mandate of
the Committee of Experts. They could thus envisage discussing this divergence of views
where it should be discussed, namely in the Governing Body. It would therefore be the
19(Rev.) Part I/44
responsibility of the Governing Body to develop a plan to address the subject. The ILO
Constitution also provided for the competence of the ICJ for the interpretation of
Conventions. The Worker members regretted enormously that the Employer members
could not agree to such an approach. They concluded that genuine tripartite social dialogue
could not take place within a situation of deadlock.
The reply of the representative of the Secretary-General
187. The representative of the Secretary-General, in response to the comments made by the
Employers members, confirmed that the Committee on the Application of Standards had
never faced a situation like the current one since its creation in 1926. The Committee was
the apex of the supervisory mechanism under a constitutional mandate, but, this year, it
had completed its work only partially, having performed its mandate under article 19 of the
ILO Constitution, but having failed to do so with respect to article 22 of the Constitution.
188. The International Labour Standards Department had provided its support to the supervisory
system, and would continue to do so in total neutrality, balance and impartiality. The
Office was governed by article 9 of the ILO Constitution, the Staff Regulations of the
Office and the Standards of Conduct of the International Civil Service. Article 9 of the
Constitution provided that in the performance of their duties, the staff was required not to
seek or receive instructions from any government or other authority external to the
Organization. Article 1.1 and 1.4 of the Staff Regulations required all officials not to seek
or accept instructions in regard to the performance of their duties from any government or
other authority external to the International Labour Office. They had to be subject to the
authority of the Director-General and had to be responsible to him in the exercise of their
functions. It was recalled that the work of the International Labour Standards Department
had never been questioned to date by any official bodies of the Organization. On the
contrary, it had been congratulated on numerous occasions by all the supervisory bodies,
including the groups of the Conference Committee in the past.
189. She indicated that it was clear that the principles and recommendations of the Committee
of Experts, the Committee on Freedom of Association, and the recommendations of the
Conference Committee were views and recommendations, and were accordingly not
binding. However, they had enormous moral authority. International labour Conventions
and Recommendations clearly had more legal authority than any recommendations by a
supervisory body.
190. The principles on the right to strike of the Committee of Experts had a tripartite origin: the
Committee on Freedom of Association. It was difficult to understand how these principles
could be contested within the framework of the Committee of Experts, but accepted in the
context of the Committee on Freedom of Association. She then referred to a publication
entitled Employers’ organizations and the ILO supervisory machinery, a joint publication
by the International Labour Standards Department and the International Training Centre in
Turin in cooperation with the Bureau for Employers’ Activities, which had been signed by
the Secretary-General of the International Organisation of Employers (IOE), the Director
of the Bureau for Employers’ Activities and by the Director of the International Labour
Standards Department, and indicated that employers had put forward a number of
principles related to the right to strike within the context of the supervisory bodies.
191. The weakening of the ILO supervisory machinery would hinder the action for the Office to
resolve problems experienced by employers’ and workers’ organizations in a number of
countries. She wished to express the view that many employers’ organizations had been
able to exist and thrive because of the work of the Committee of Experts together with that
of the Conference Committee. The failure to discuss individual cases was in no one’s
19(Rev.) Part I/45
interest, as workers’ and employers’ organizations had come to the Conference to have
their concerns examined, as provided for by the Standing Orders of the International
Labour Conference.
192. Numerous options had been proposed to address the issues relating to the right to strike. It
had to be borne in mind that any decision to refer the question of the right to strike to the
ICJ, as provided in article 37(1) of the ILO Constitution, could have the effect of making
the principles on the right to strike obligatory, while they were now only soft law. She
emphasized the need not to forget that the members of the Committee of Experts were
appointed through a tripartite process by the Governing Body. She concluded by stating
that it was a sad day for the supervisory system and that she shared the concerns expressed
during the sitting of the Committee.
The reply of the Chairperson of the Committee
193. The Chairperson expressed his deep regret about the current situation. Nonetheless, he
expressed optimism that this situation should allow for reflection and for a solution to be
found. The social partners had the same goals of social justice, peace and welfare and trust
between them was not lost.
The reply of the Legal Adviser
194. The Legal Adviser, speaking in response to the question raised by IMEC as to what
options were available to the Conference Committee to deal with the issues raised by the
Employer members on the supervisory machinery and how this could be done in the
appropriate forum, presented two options. First, a specific chapter could be created in the
report of the Committee on the Application of Standards reflecting the content of the
discussion and the different views expressed on the functioning of this Committee,
including those in relation to the reports of the Committee of Experts. The specific chapter
could terminate with a request for the Conference to decide to ask the Director-General to
communicate that chapter to the Governing Body, with a further request for its appropriate
follow-up as a matter of urgency. The terms of this request could be further defined in the
proposed decision and could include suggestions on the manner in which the Conference
would further review the matter following action taken by the Governing Body within its
mandate, including any relevant proposals on reform in relation to the functioning of the
Conference Committee. Secondly, Committee members concerned could submit the text of
a proposed resolution for this Committee to submit to the Conference together with its
report. This resolution could note the different views expressed at this session and call for
a review of the matters raised and the functioning of the Conference Committee’s working
methods, including in relation to the reports of the Committee of Experts. It could invite
the Governing Body to take up this issue as a matter of urgency, in the context of its
ongoing work relating to reform of the Conference or in any other appropriate manner.
Such a resolution would be submitted and discussed in accordance with article 63 of the
Standing Orders of the Conference.
* * *
195. The Chairperson indicated that he was forced to close the discussion due to the failure to
adopt a list of cases to be discussed during this session of the Conference Committee.
19(Rev.) Part I/46
F. Follow-up discussion on the way forward
196. The Government member of Sudan, speaking on behalf of the Government group, stated
that the Government group was not at this time in a position to discuss the substantive and
procedural issues in relation to the functioning of the Conference Committee and the
reports of the Committee of Experts. The Government group had noted the options
presented by the representative of the Legal Adviser and recommended that a specific
chapter be included in the report of the Committee on the Application of Standards
reflecting the content of the discussion on those issues as well as the different views
expressed. The Government group suggested that the specific chapter should terminate
with a request for the International Labour Conference to decide to ask the
Director-General to communicate that chapter of the report to the Governing Body, with a
further request for its appropriate follow-up as a matter of urgency.
197. The Government member of Belarus supported the statement of the Government group and
added that the specific chapter was an important issue which should be brought to the
attention of the International Labour Conference.
198. The Employer members were optimistic that, after reflection upon the situation, the
Committee would find a way forward, since the tripartite constituents had one common
aim – social justice. They appreciated the legal opinion given by the Legal Adviser and
anticipated that further questions would be raised by the Committee. However, the
Employer members expressed the concern that both options elaborated upon in the legal
opinion necessitated further delay in seeking a solution and required this Committee,
despite being a sovereign body and the apex of the supervisory system, to refer the matter
to a lower body, the Governing Body. In their view, the problem would not be solved
before the Governing Body but rather returned to the International Labour Conference at a
later stage. It was thus preferable to find a solution now rather than to perpetuate the crisis.
Therefore, the Employer members submitted the proposal to add the following text as an
introductory paragraph to the General Survey and the report of the Committee of Experts:
Appendix V (Article 408 of the Treaty of Versailles) to the Record of Proceedings of the
International Labour Conference in 1926 explained the necessity of a technical committee of
experts (later named the Committee of Experts on the Application of Conventions and
Recommendations (CEACR)) as follows:
“The functions of the Committee would be entirely technical and in no sense judicial.”
“It was agreed however that the Committee of Experts would have no judicial capacity
nor would it be competent to give interpretations of the provisions of the Convention nor to
decide in favour of one interpretation rather than of another.”
At the 103rd Session of the Governing Body in 1947, it was explained that the CEACR
would “carry out an examination of the annual reports submitted by the Governments … in
preparation for the examination of these reports from a wider angle by the Conference” and
that this served as an “indispensable preliminary to the over-all survey of application
conducted by the Conference through its committee on the Application of Conventions”
(paragraph 36, Annex XII, Minutes).
199. The Employer members underlined that this text had been agreed upon in 1926 and
reaffirmed in 1947 and that nothing had changed since. They raised the question as to why
no agreement could be reached on the insertion of such a text at present. While
acknowledging that the current situation was very difficult for governments and that they
needed time to consult with their capitals, the Employer members reiterated that there was
an urgent need to respond to this key question and discuss the issue immediately. On 7 July
2011, the Bureau for Employers’ Activities had submitted the views of the IOE concerning
the right to strike in advance of the elaboration of the General Survey, indicating in
particular that:
19(Rev.) Part I/47
The right to strike is not provided for in either Convention Nos 87 or 98, and was not
intended to be. The legislative history of Convention No. 87 is indisputably clear that, “the
proposed Convention relates only to freedom of association and not to the right to strike”.
Furthermore, as was emphasized by the Employer spokesperson during the final discussion of
Convention No. 98 in 1949, “the Conference Chairman declared irreceivable the two
amendments aimed at incorporating a guarantee for the right to strike, as they were not put in
the scope of the Convention. The Speaker thus expressed the opinion that the passage in
question constituted a factual error with respect to the historical basis of the right to strike
being fundamentally inherent in these Conventions”.
200. The Employer members felt that they had raised the issue of the right to strike consistently
for numerous years and that they had been ignored in this respect. The content of the
General Survey and its use, or misuse, by the outside world had made it imperative for the
Employer members to seek clarification of the situation, as it was vital for governments,
employers and workers to be clear on what was the right to strike in relation to the ILO.
The Employer members indicated that, should the Conference Committee reach an
agreement as regards the immediate insertion of the above introductory paragraph into the
General Survey and the report of the Committee of Experts, this would address their
concerns with regard to the status of these reports, in which case they would be prepared to
discuss the five “double-footnoted” cases, which dealt with the most serious violations of
ratified Conventions.
201. In conclusion, the Employer members believed that there were lessons to be learnt by all
members of the Committee as to communication and management of similar crisis
situations. As regards the concern expressed by Government members, that this issue
should have been raised in advance before the Governing Body in a tripartite way, the
Employer members responded that the matter had not been on the agenda of the Governing
Body and that the International Labour Conference was a sovereign body. The Employer
members reiterated their preference that the current situation, which had been brought to a
head by this year’s General Survey and its use in the outside world, and not by other
factors, be resolved in this tripartite sovereign body without delay. There was no bigger
industrial relations issue in the world of work than the right to strike, and the General
Survey had created the need to resolve the issue urgently so that there would be certainty
among tripartite constituents.
202. The Worker members emphasized that from the outset of the work of the Committee they
had shown a genuinely constructive attitude, going beyond mere words and putting
proposals on the table. However, the current impasse was due to unacceptable, even
illegitimate, conditions which had been imposed with regard to drawing up the list of
individual cases, notwithstanding the fact that the prime task of the Committee was to
examine the cases on that list.
203. The Worker members thanked the Legal Adviser for the replies to the questions raised by
IMEC concerning the options available before the Committee. With regard to the
explanations given, some points needed further consideration and other questions should
be asked, with the proviso that the asking of those questions in no way meant that the
Worker members accepted any legal solution or gave their agreement with regard to any
specific procedure. Repeated reference had been made to article 37 of the ILO
Constitution, which stated as follows: “Any question or dispute relating to the
interpretation of this Constitution or of any subsequent Convention concluded by the
Members in pursuance of the provisions of this Constitution shall be referred for decision
to the International Court of Justice.” The ICJ had been established by article 92 of the
United Nations Charter and it had both contentious and advisory jurisdiction. It was only
States that could submit contentious cases to the ICJ. Advisory proceedings could be
instituted by the General Assembly and the Security Council, as well as by other UN
19(Rev.) Part I/48
bodies and organizations, including the ILO, subject to the agreement of the General
Assembly. States could not initiate advisory proceedings before the ICJ.
204. The Worker members asked the Legal Adviser to clarify the following points:
– whether the ICJ jurisdiction was contentious or advisory in the context of the
application of article 37 concerning the interpretation of the Constitution and
Conventions, since paragraph 2 of article 37 appeared to provide for both options;
– how to institute proceedings before the ICJ;
– the procedure to be followed for bringing any proceedings before the ICJ and the
usual time frame in which the ICJ dealt with questions or disputes relating to the
interpretation of Conventions; and
– the specific ways in which member States would incorporate the judgments or
advisory opinions of the ICJ in their national jurisprudence and ensure the observance
thereof by jurisdictions at all levels.
205. Furthermore, the Worker members raised the question whether the ICJ already had
occasion to rule on questions of interpretation of ILO Conventions and thereby completely
undo the analysis undertaken by the Committee of Experts.
206. The Worker members also emphasized that the possibility of inserting a “caveat” or
“disclaimer” or even a “caution” or “introductory paragraph” in documents originating
from the Committee of Experts and based on the reporting obligations under articles 22
and 19 of the ILO Constitution, namely General Surveys and reports of the Committee of
Experts, had been referred to several times. That request from the Employer members had
no support whatsoever from the Worker members. Indeed, according to the Employer
members, the General Survey and the report could not be seen as texts that were
authoritative for the tripartite constituents of the ILO. This gave rise to a number of
questions: Who had competence to decide on the insertion of such a “caveat”? Could the
initiative be taken by the Worker members or the Employer members acting alone and of
their own accord? Was a consensus between Worker members and Employer members
sufficient? What was the role of Government members? Was an agreement needed among
all the tripartite constituents of the ILO? Could one of the constituents impose the “caveat”
on the others and, in the event of their refusal, would the work of the Conference
Committee be adjourned definitively and thereby jeopardized? Since these issues were
highly sensitive, the Worker members asked the Legal Adviser to make a statement in that
regard in due course.
207. Finally, the Worker members proposed that the Tripartite Working Group on the Working
Methods of the Conference Committee be convened in November 2012 to examine the
consequences of the discussions that had taken place within the Committee and to discuss
possible action with an eye to the next session of the International Labour Conference in
2013.
G. Decision paragraph submitted by the
Chairperson of the Committee following
tripartite consultation
208. The Chairperson submitted, following tripartite consultation, a proposed decision
paragraph, which read as follows:
19(Rev.) Part I/49
The Committee noted that different views were expressed on the functioning of the
Committee in relation to the reports of the Committee of Experts which were submitted for its
consideration as found in paragraphs 21, 54, 81–89, 99–103 and 133–224 of this report.
The Committee recommended that the Conference: (1) request the Director-General to
communicate those views to the Governing Body; and (2) invite the Governing Body to take
appropriate follow-up as a matter of urgency, including through informal tripartite
consultations prior to its November 2012 session.
209. The Employer members fully supported the proposed decision paragraph and reiterated
their optimism that, with calmness and after reflection upon the problems that had arisen,
the tripartite constituents would find a solution together. They were relieved and proud that
this Committee was taking tripartite responsibility for finding a solution to the clarification
of the mandate of the Committee of Experts and the proposed insertion of an introductory
paragraph into the reports of the Committee of Experts so as to avoid any
misunderstanding in the world of work. It was and would remain the position of the
Employer members that the Committee of Experts’ mandate was that which had been
historically agreed upon on a tripartite basis.
210. Acknowledging the difficulties that the situation had created for the Government members,
the Employer members stressed that they had always been, and in the future would always
be, willing to supervise those cases that the Committee of Experts considered the worst
cases of workers’ rights violations. Reaffirming that all members of the Committee could
learn from the communication and committee management issues that had arisen this year
and could do better in the future, they renewed their total commitment to this Committee
and its important work. They indicated that they were looking forward to working with the
Worker and Government members during the informal consultations towards a
clarification for everyone on the key political, social and economic issue of the right to
strike, as there was no bigger industrial relations issue at the national level. The Employer
members expressed their resolution and renewed hope that, at next year’s Conference, the
Committee would announce as of the first day the solution found by the tripartite
constituents and that the Government members would be provided with the final list of
individual cases by Thursday of the first week.
211. The Worker members stated that they wished to be constructive so that everything could
be put in place for the Committee’s meetings in 2013 and thereafter. However, being
constructive was not the same as being happy or satisfied with this proposal, which was
too solemn and impersonal to be able to give justice to workers. The proposal was very
important for safeguarding the mission of the ILO and, above all, for preserving the
supervisory machinery for the application of standards, even if it did not make up for the
fact that far too much time had been lost and that, at the end of the day, none of the cases
on the list had been dealt with. It now fell to the Governing Body to take up the complex
issue promptly and to good effect.
212. The Worker members emphasized that they would never be able to take a positive view of
the events that had stained the Committee’s activities over the past week. Nevertheless, the
ILO must live and constantly evolve in order to better achieve the objective of social
justice that it had embraced since the Declaration of Philadelphia. The previous day, after
long and trying negotiations, a proposal had been submitted by the Chairperson for the
Committee’s approval, according to which the differences of opinion between Worker and
Employer members concerning the reports of the Committee of Experts, which had been
noted and would be duly recorded, should be resolved as a matter of urgency and, in any
case, within a period of time that would allow the required institutional deadlines for the
work of this Committee in 2013 to be observed. In that regard, it was important for the
questions put to the Legal Adviser to be duly reflected in the record.
19(Rev.) Part I/50
213. The Worker members indicated that the proposal had been submitted to the Workers’
group and had given rise to heated discussions. There had been immense distress at the
events that had occurred. While accepting the proposal and, consequently, the procedure
that it envisaged, a number of comments needed to be made. The difficult negotiations and
the events that had occurred, including the preliminary contacts, the timing of which had
been recalled previously, would leave a negative impression in the memory of the Worker
members, as the confidence between the partners had been very seriously tested and even
nearly broken. The past days’ events would also remain entrenched in the memory of the
ILO staff. In that regard, emphasis should be placed on the statement made by the
Director-General that morning to the plenary of the Conference, in which he had
vigorously defended the integrity of the ILO staff and the impartiality of the experts
entrusted with supervising the application of Conventions and Recommendations. 6
214. The Worker members emphasized that the return of the Worker representatives to their
countries would be painful, and at times marked by fear. They had come here to describe
cases of violation of their rights guaranteed by the ILO’s Conventions, and yet they would
return empty-handed, without any conclusions from the Committee, without the support of
the international community to build up their courage again when facing harassment,
aggression, murder and the violation of their basic right to be treated with dignity by
governments and national and international companies. What would the Worker members
say to the family and colleagues of Manuel de Jesús Ramirez, the Guatemalan trade union
leader murdered on 1 June 2012, on the very day that the Committee was beginning its
work? What would they say to the workers of Fiji and their representatives, confronted in
their country by a military government which showed no respect for the rights of workers,
and for whom the only hope that remained was the ILO and the Committee on the
Application of Standards? What would they say to the workers of Greece, Turkey,
Colombia, Swaziland, Belarus and other countries? Should one minute’s silence be
requested in memory of the 25 cases that would not be examined? How would these
workers understand the attack against the Committee of Experts, which was described by
the IOE press release as an “legitimate request for official clarification regarding the status
of the observations” of the Committee of Experts. How would they be able to understand
that the attack had had the effect of preventing the list of cases from being examined?
215. The Worker members recalled that since the very first interventions by the Employer
members opposing the interpretation of the foundations of the right to strike by the
Committee of Experts, they had emphasized that this issue lay within the sole and unique
competence of the Governing Body and had proposed that the matter should be referred to
it. That proposal would have allowed for the examination of the “list” submitted to the
Committee by the Worker members. In addition to the five cases with double footnotes,
the list had contained several cases submitted by the Employer members. It should not be
forgotten that many employers’ organizations had been able to exist and prosper as a result
of the work of the Committee of Experts and the Conference Committee on the
Application of Standards. The failure to examine the list of cases during the Conference
benefited neither the workers nor the employers. Indeed, the failure of the Committee’s
work would benefit all those who challenged the effectiveness of the ILO and its standardsetting
function.
216. The Worker members stated that they would stick to the agreement reached because they
had always respected the ILO and had followed the rules of the game of tripartism and
social dialogue. It was crucial to continue seeking constructive solutions in spite of
6 The full text of the Director-General’s statement can be found in the Provisional Record No. 7,
p. 3.
19(Rev.) Part I/51
divergence of views and difficult clashes. However, the work entrusted to the Governing
Body needed to have a proper framework. The ILO’s specificity stemmed from its
tripartism which was unique among UN agencies and anything else would be
inconceivable. The Committee of Experts, which had been the cornerstone of the
supervisory system since 1926, retained the confidence of the Worker members, and its
opinions, which although were not legally binding, still had and would always enjoy a high
moral authority. As long as these opinions were not contradicted by the ICJ, they remained
valid and commonly agreed upon. This essential prerequisite had to be accepted, in
particular to ensure the legal certainty necessary for the proper functioning of the ILO. The
criticisms addressed to the Committee of Experts with respect to their abuse of authority as
regards the interpretation of Convention No. 87 in relation to the right to strike were
excessive and indirectly constituted a denial of the jurisprudence of the Committee on
Freedom of Association, which was itself a tripartite body. The right to strike was not only
a national matter to be dealt with and assessed according to economic or time-bound
considerations. Besides Conventions Nos 87 and 98, there was also the International
Covenant on Economic, Social and Cultural Rights, as well as several regional texts such
as the Charter of Fundamental Rights of the European Union, the European Social Charter,
the Convention for the Protection of Human Rights and Fundamental Freedoms and the
Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (“Protocol of San Salvador”).
217. The Worker members requested the Committee, after consultation with the Employer
members, to consider the following proposal:
In view of the fact that the Committee on the Application of Standards was not in a
position to discuss any of the cases enumerated in the preliminary list and in order to avoid
any further disruption of the functioning of the ILO supervisory mechanisms, the
Committee requests the governments included in the preliminary list 7 to send a report to
the Committee of Experts to be examined at its next session.
218. In conclusion, the Worker members underlined that it was only the ILO which allowed for
a dialogue that moved forward the rights of the most vulnerable. They indicated that they
would work today, tomorrow and thereafter on the observance of the agreement reached.
219. The Employer members agreed with the proposal made by the Worker members provided
that it was acceptable to the Government members.
220. The Government member of Canada, speaking on behalf of IMEC, endorsed the proposal
brought forward by the Worker members.
221. The Government member of the Bolivarian Republic of Venezuela stated that he respected
the position of each of the governments that featured on the preliminary list and
understood the reasoning given by the Worker members. With that proposal, which had
been put before the Committee at the last minute, and on the basis of all that had happened
during the Committee’s meetings, the urgent need to discuss and establish clear, objective
and transparent standards and procedures for the Committee’s methods of work had been
demonstrated once again. Doing so could not be put off any longer if the credibility and
seriousness of the Committee on the Application of Standards was to be ensured;
otherwise, the legitimate rights of governments would continue to be eroded, in the sense
that the tripartism of this Organization would be called into question even more.
7 See Annex 2.
19(Rev.) Part I/52
222. The Government member of Cuba, having listened to the proposal made by the Worker
members, indicated that she did not oppose it, but expressed concern regarding the last
minute nature of this proposal, which could not be subject to consultations among
Government members. These events demonstrated the lack of transparency of this
Committee’s working methods and the urgent need for reform. She sought clarification as
to what purpose it would serve this year for the Committee of Experts to examine the
information submitted by the governments on the preliminary list.
223. The Government member of the Islamic Republic of Iran reiterated his Government’s full
commitment to the ILO supervisory system, including the work of this Committee, as well
as the importance it attached to the fair and objective, apolitical and impartial analysis
undertaken by the Committee of Experts in the context of the well-defined mandate. His
Government deeply regretted the non-adoption of the final list of individual cases and the
unexpected closing down of the work of this Committee. The recent apologetic events had
severely hampered the ability of governments to adequately participate in the proceedings
of this irreplaceable mechanism and had therefore adversely affected the fulfilment of the
mandate of this Committee. This year’s events would go down into the history of the ILO
as unfortunate and unforgettable events tarnishing the reputation of its once highly boasted
supervisory body and clearly showed the need for a proper review of the procedures on this
matter by resuming the work of the Tripartite Working Group on the Working Methods of
the Conference Committee established in June 2006, that had held a total of 11 fruitful
meetings. Finally, the speaker trusted that this Committee could rely on the constructive
collaboration of the social partners on this important matter.
224. The Government member of Brazil expressed the concern of his Government over the
situation in the Committee regarding the publication of the list. He emphasized the need to
preserve the supervisory system and called attention to the systemic risks of the current
situation. He underlined the need to publish the list in time and reiterated GRULAC’s call
in this regard.
225. The representative of the Secretary-General, in response to the request from the
Government member of Cuba, emphasized the importance the Committee of Experts
attached to the work of the Conference Committee and the diligence with which it was
taking into account the comments made by this Committee. This year’s report of the
Committee of Experts contained a special section on all the cases previously discussed in
the Conference Committee. Given the respect and the deference the Committee of Experts
had to this Committee, it was certain that they would take to heart the request by the
Conference Committee to examine the cases on the preliminary list, if these reports were
submitted in due time, notably by 1 September 2012. She indicated that a number of
countries had already provided information that was meant to be submitted to this
Committee, and some governments would need to confirm whether this was the most
up-to-date information, or whether new information needed to be provided.
226. The Chairperson observed that there was no disagreement from the Government members
on the proposals that appear in paragraphs 207 and 216, and as a result, these proposals
were adopted.
H. Adoption of the report
and closing remarks
227. The Committee’s report was adopted as amended.
228. The President of the Conference said that there were clear synergies between the
discussions on youth employment, the social protection floor, the fundamental principles
19(Rev.) Part I/53
and rights at work and the transcendental mandate of the Committee on the Application of
Standards. The Committee was a fundamental part of the ILO’s regular supervisory
machinery which had been of inestimable value in the development of international labour
law and had given unique prestige to a supervisory system of the application of standards
that was the most successful that had existed throughout history. He recalled the words of
Nicolas Valticos, who had said that the ILO’s founders had set up from the first days a
precise mechanism to monitor compliance with the standards to be drawn up by the
Organization and that it was acknowledged that the ILO’s supervisory functions were the
most highly developed in the international arena due to the participation of employers’ and
workers’ organizations, and the qualities of independence and expertise of the members of
the supervisory bodies. He added that, on the occasion of the 85th anniversary of the
Committee, it had been emphasized that the Conference Committee still offered “a
potential that has not been totally exploited. Its tripartite and universal nature, its
parliamentary role and its undeniable authority confer upon it an importance that is of great
significance and make it the cornerstone of the ILO supervisory system”. He reaffirmed
that it would be difficult to understand the functioning of labour and constitutional law
without the influence of the jurisprudence of the ILO supervisory bodies. The General
Survey on the ILO’s fundamental Conventions, entitled “Giving globalization a human
face”, could be considered unprecedented in the ILO and in the world of work as it
emphasized the interdependence and complementarity of the fundamental Conventions and
their universal applicability, thereby offering an ILO response to globalization. However,
he expressed concern at the difficulties surrounding the work of the Committee and hoped
that the situation would result in reflection and that solutions would be found that would
enable the social partners to find a direction in the context of their views and mandate. He
made a call for the dialogue that had served the Committee with a view to preserving and
strengthening a unique body in the international arena and he offered his support for any
initiative that would reinforce the future work of the Committee.
229. The Worker members said that this year their concluding remarks would be different, as
they would not have to evaluate the conclusions adopted by the Committee during its
discussions of individual cases. They strongly deplored the serious incidents that had
prevented the Committee’s work from being carried out. However, a common solution had
been found and would need to be given effect in good faith and rapidly. Firstly, it was now
for the Governing Body to follow up rapidly the decision adopted by the Committee on
6 June 2012. The differences of views between the Worker and Employer members
concerning the reports of the Committee of Experts would have to be resolved on an urgent
basis, and in any case sufficiently in advance to allow the timetable of preparations to be
followed for the holding of the Committee on the Application of Standards in 2013.
Secondly, the 49 countries that were on the preliminary list were expected to provide a
report, at the latest by 1 September 2012, containing replies to the comments of the
Committee of Experts with a view to avoiding any interruption in the continuity of the
supervisory bodies.
230. The Worker members recalled that the General Survey and the work of the Committee on
the Recurrent Discussion were linked under the process established in the ILO Declaration
on Social Justice for a Fair Globalization of 2008. The Social Justice Declaration needed to
be taken seriously and was not just one more procedure. It emphasized the unique
comparative advantage and the legitimacy of the ILO based on tripartism and the rich and
complementary practical experience of its tripartite constituents in addressing economic
and social policies affecting the lives of people. It had been adopted to reinforce the
capacity of the ILO in relation to the objectives of the Declaration of Philadelphia and was
based on the four strategic objectives that were of equal value. The recurrent discussion
this year had addressed compliance with, promotion and implementation of the
fundamental principles and rights at work, while the General Survey covered the same
fundamental principles and rights at work, as set out in the eight fundamental Conventions.
19(Rev.) Part I/54
In order to emphasize the links between the supervisory work entrusted to the Committee
on the Application of Standards under articles 19 and 22 of the ILO Constitution, and that
of the Committee on the Recurrent Discussion, the Committee on the Application of
Standards had been expected to transmit common conclusions to the Committee on the
Recurrent Discussion. However, the attack carried out by the Employer members against
the General Survey had prevented the Committee on the Application of Standards from
presenting its views to the Committee on the Recurrent Discussion, which had not
therefore been able to work fully within the framework envisaged by the 2008 Declaration.
That raised a political issue that the Office would have to evaluate when assessing the
impact of the 2008 Declaration. They greatly regretted the impact of the incidents in the
Committee on the Application of Standards on the work of the Committee on the
Recurrent Discussion. And yet, it had seemed that tripartite consensus could have been
achieved on a message to be transmitted to the Committee on the Recurrent Discussion. In
practice, the Employer members did not appear to be opposed to Convention No. 87 as
such. Their concerns were related to the fact that, in the view of the Committee of Experts
and of the Worker members, the right to strike was based on the Convention. They
therefore considered that the interpretation by the Committee of Experts of the right to
strike was exaggerated and unjustified. Apart from that, the Convention was unchallenged
and was also the basis of the right to organize of employers. Over and above that, could the
Committee reaffirm that the eight fundamental Conventions were more topical than ever in
the context of the global economic crisis and the other challenges affecting the well-being
and livelihoods of workers in all regions? Could the members of the Committee say jointly
that, in the context of the crisis and the austerity plans of many governments, it was
essential for recovery measures to be designed taking into account the fundamental
Conventions? Was it not possible to issue a joint invitation to the Governing Body to
prepare a plan of action covering the period up to 2015 for universal ratification of the
fundamental Conventions, targeting in particular the 48 member States that had not ratified
all of the fundamental Conventions and encouraging States with the highest populations to
ratify the eight Conventions? Could a joint request not be made for sufficient resources to
ensure the provision of technical assistance by the Office on issues relating to ratification
and application in practice? Would it not be possible to make a joint call for an effective
increase in social dialogue on the implementation of the fundamental Conventions and for
social dialogue to be more effective? The failure of the Committee’s work in relation to the
eight fundamental Conventions was a matter of concern for the future. The General Survey
in 2013 would cover the standards on social dialogue in the public service. The General
Survey for 2014 would be on wages. Would fresh difficulties arise? Would it be claimed
that wages should not be protected and were no more than an economic variable in the
quest for profit?
231. The Worker members, with reference to the geopolitical context of the violation of
workers’ rights, said that they could not remain silent concerning the cases that had not
been examined by the Committee. However, they would not endeavour in a few minutes to
make up for all the work that had not been carried out by the Committee. The sole
objective was to do justice in a very incomplete manner to the Worker members who had
come to Geneva in the hope of being able to speak about their everyday experience of
repeated violations of their rights as guaranteed by ILO Conventions. They would be
returning home empty handed, without being able to describe the practices in their
countries in relation to the application of the Conventions ratified by their governments.
They would be returning without the Committee’s conclusions, even though they were
often the official signal of the support of the international community and of its wish to
help them with a view to bringing an end to situations of harassment, aggression, murder
and the violation of their rights. The Worker members indicated that they had organized
within their group, at their own initiative, an examination of some of the five so-called
double footnote cases, as well as certain other very serious cases in meetings that the other
groups had been free to attend. That had not constituted an examination of the cases, but
19(Rev.) Part I/55
had placed the degradation in the situation of workers the world over in context. Their list
of cases had included several of the 27 Member States of the EU, and particularly Spain
for the Termination of Employment Convention, 1982 (No. 158), Romania for the
Protection of Wages Convention, 1949 (No. 95), and Greece for the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98). The World of Work Report 2012,
published recently by the ILO, indicated that the narrow vision among many countries in
the Eurozone concerning budgetary rigour was deepening the employment crisis and could
even result in a new recession in Europe. The priority given to a combination of budgetary
austerity and drastic labour market reforms had resulted in a dangerous employment crisis
in Europe. The European Commissioner for Employment, Social Affairs and Inclusion,
Lazlo Andor, had very recently confirmed that approach when he had wondered whether
the medicine proposed in many Member States of the European Union was “curing or
killing the patient”. The examination of the three cases would have provided an
opportunity to assess the practical impact of the reform policies adopted in many European
Union countries. It would have shown whether such reform policies still allowed
governments to consider that they were in compliance with ILO Conventions. The three
cases concerned wages and their negotiation, measures relating to the termination of the
employment relationship and their negotiation and, in more general terms, attacks on the
autonomy of the social partners and the development of the decentralized bargaining
model at the enterprise level. In addition to those cases, reference would have been made
to government attacks against workers in the name of budgetary orthodoxy and rigour at
any price in public finances. The question would have arisen of the deregulatory role of the
European and international financial institutions, which believed themselves above ILO
Conventions and placed governments under pressure. The ITUC’s 2012 annual report on
violations of trade union rights, published a few days ago, highlighted the violations of
Convention No. 87 that the Worker members had placed on their preliminary list of cases.
The Committee of Experts had also commented on those cases, on some occasions
emphasizing the recurrent and almost traditional nature of the failures noted.
232. The trade union rights of workers were violated throughout the world, which was why the
issue arose each year of the selection of too many cases concerning Convention No. 87,
without even referring to the question of strikes. The Worker members assured the
Committee that they would like not to have to select so many of those cases. They referred
to the situation in export processing zones, which was not limited to certain geographical
areas, but applied at the sectoral level, as well as the experiments with solidarist
associations in Europe which were being carried out with the sole objective of destroying
the trade union movement. They also referred to the cases of Fiji and Guatemala – where
physical reprisals against Worker members were to be feared – as well as those of
Myanmar, Swaziland, Zimbabwe, Turkey, Algeria, Belarus (which was a historical case
for the Committee, and where nothing was changing) and Colombia where, although there
had been some progress, 29 trade unionists had died in 2011. They also referred to the case
of Egypt and recalled that in 2011, the Ministry of Manpower and Migration had
emphasized the value of social dialogue between governments, employers and workers
with a view to achieving social peace and creating a climate conducive to economic
development. One year later, none of that had been achieved. The Worker members also
referred to the case of Mexico in relation to the Occupational Safety and Health
Convention, 1981 (No. 155), which had been examined by the Committee for several
years, including in 2011, where nothing had changed. They also recalled that 2011 had
been spectacular in being characterized by democratic movements in the countries of the
Middle East and North Africa, including Egypt, as noted previously. In the view of the
Worker members, it would also have been important to highlight the persistent violations
of Convention No. 111 in Saudi Arabia, which was a model for all of the Arab Emirates.
Moreover, discussion of other cases would also have been fully justified. They indicated
that they were still concerned at the numerous violations of the Indigenous and Tribal
Peoples Convention, 1989 (No. 169), and that the case of Paraguay appeared to them to be
19(Rev.) Part I/56
particularly significant in relation to violations of the rights of indigenous and tribal
peoples. The Government and Employer members had accepted the idea of requesting the
governments on the preliminary list to supply a report by 1 September 2012. The cases
referred to previously were a sample of the most worrying cases for which a full report was
required. The Worker members indicated that they had been mortified by the discussions.
The preparation of a final list of cases had been impossible in 2012. The solution for the
future depended on the work entrusted to the Governing Body following the agreement
reached within the Committee. A solution would need to be found by March 2013.
233. In conclusion, the Worker members thanked the Chairperson and Rapporteur of the
Committee, the Chairperson and members of the Committee of Experts. They also thanked
the Government members of the Committee for their cooperation. Without their support, it
would not have been possible to reach an agreement. The result obtained was owned by the
tripartite members of the Committee, and it was to be hoped that it would mark the
beginning of the path towards a lasting solution. Finally, they called on the members of the
Committee to approve its report so that it could be submitted to the Conference Plenary.
234. The Employer members stated that this had been an unusual year for the Committee, and
refuted rumours suggesting that any victory had been won. Nobody had won this year. The
purpose of this Committee was to discuss individual cases on alleged violations of ratified
Conventions. There had been no list of individual cases this year. The Employer members
would also have liked to have cases to be heard in this Committee, such as Serbia
(Convention No. 144), Uruguay (Convention No. 98) and Uzbekistan (Convention
No. 182); all tripartite constituents had wanted to have cases heard. The Employer
members indicated that they had won nothing and emphasized that all social partners had
failed in this regard. However, they had been able to raise an important point on the work
of the Committee of Experts and of the Conference Committee. Responding to earlier
comments that these issues should have been raised earlier, they indicated that they had
actually been doing this for many years. Referring to the discussion of the Conference
Committee held in 1991, they highlighted that the Employers members, had, at that time,
raised the issue and had noted that dialogue could include both criticism and praise; they
had also noted that, in their view, the interpretation that Convention No. 87 included the
right to strike was not correct. Similar issues had been raised again by the Employer
members in both 1994 and in 1998. The reports of the Conference Committee also showed
that since 2000, the Employer members had consistently stated that the Committee of
Experts should not extend to definitive interpretations of ILO Conventions and that its
interpretation that Convention No. 87 implicitly included the right to strike was, in their
view, wrong. Convention No. 87 never contained this right.
235. The Employer members concluded by thanking the Chairperson, the Representative of the
Secretary-General and the Secretariat, and also thanked the Worker members, and
especially the Worker spokesperson for his collaboration. The speaker further thanked the
Governments for having to put up with everything, and emphasized that it had never been
the intention of the Employer members to cause any inconvenience.
236. The Chairperson of the Committee indicated that, with the end of its work, the Committee
was entering a sabbatical period that called for reflection, planning and preparation for the
future. The Committee had given indications that changes were necessary. For the first
time, the examination of individual cases had been interrupted. Nevertheless, the
Committee’s objectives, which were the quest for peace, equality and liberty for a better
world, were continuing without interruption. The difficult task of finding solutions to make
a leap forward and to improve the work of the Committee was a tripartite challenge that
would start immediately and it was hoped that more positive results would be achieved in
the future. The eyes of the world were on the Committee, and this year it had not had any
answers to offer. Countries would not be benefiting from technical assistance to improve
19(Rev.) Part I/57
compliance with standards as a result of the discussions of the Committee. He emphasized
that it was not the time to think in terms of winners and losers. Everybody had the
responsibility to carry forward a constructive discussion on the questions that had arisen
and which were reflected in the report adopted by the Committee. It would be necessary to
rebuild confidence within the Committee, recuperate and improve the basis for its work
and to work for the benefit of standards by pursuing the common objective of peace, social
justice, decent work, sustainable enterprises and freedom at all levels. He thanked the
members of the Committee, the Secretariat and the interpretation services for their
cooperation and work during the session.
Geneva, 12 June 2012 (Signed) Mr Sérgio Paixão Pardo
Chairperson
Mr David Katjaimo
Reporter
Document No. 269
ILC, 106th Session, 2017, Report of the Committee on
the Application of Standards, paras 37, 39, 43
ILC106-Record of Proceedings 15-PI-En.docx 15 Part I/1
International Labour Conference
15
PART ONE
Record of Proceedings
106th Session, Geneva, June 2017
Date: Thursday, 15 June 2017
Third item on the agenda: Information
and reports on the application of
Conventions and Recommendations
Report of the Committee on
the Application of Standards
PART ONE
GENERAL REPORT
Contents
Page
A. Introduction ...................................................................................................... 3
B. General questions relating to international labour standards ........................... 8
C. Reports requested under article 19 of the Constitution .................................... 16
D. Compliance with specific obligations .............................................................. 36
E. Adoption of the report and closing remarks ..................................................... 40
Annex 1. Work of the Committee ................................................................................... 44
Annex 2. Cases regarding which governments are invited
to supply information to the Committee .......................................................... 57
ILC106-Record of Proceedings 15-PI-En.docx 15 Part I/11
1 September, which disturbed the sound operation of the regular supervisory procedure.
Moreover, the Committee of Experts had called on all governments to ensure that copies of
reports on ratified Conventions were communicated to the representative employers’ and
workers’ organizations so as to safeguard this important aspect of the supervisory
mechanism. As regards ways of increasing the visibility of its findings by country, the
Committee of Experts had underlined the available electronic means, in particular the
NORMLEX database, and the important practical guidance given to member States through
technical assistance. In this context, the Committee of Experts had reiterated its hope that a
comprehensive, adequately resourced technical assistance programme would be developed
in the near future to help all constituents improve the application of international labour
standards in both law and practice. Lastly, the speaker drew the Conference Committee’s
attention to the cases, identified by the Committee of Experts, in which, in view of the
seriousness of the issues addressed, the governments concerned had been requested to
provide full particulars to the Conference (paragraph 48 of its General Report).
36. Finally, the Chairperson of the Committee of Experts gave the assurance that the latter was
firmly engaged in the path of meaningful dialogue with the Conference Committee and all
other ILO supervisory bodies, in the interest of an authoritative and credible supervisory
system and ultimately for the cause of international labour standards and social justice
worldwide.
Statement by the Employer members
37. The Employer members welcomed the presence of the Chairperson of the Committee of
Experts in the general discussion of this Committee. They welcomed the 2017 report of the
Committee of Experts and highlighted three positive elements in that report. Firstly, the
mandate of the Committee of Experts had been reproduced in paragraph 17 of its General
Report, thus helping to clarify that its opinions and recommendations were not legally
binding for member States. Secondly, the Employer members noted with satisfaction that
most of the conclusions adopted last year had been followed up in the meantime by Office
assistance, for instance by direct contacts missions and the provision of technical assistance
and advice. They agreed with the Worker members that the cases discussed by the
Conference Committee should be included in a special section of the Committee of Experts’
report. In this regard, there was a need to apply more realism in standards supervision by
making greater efforts to assess the implementation of ratified Conventions in the light of
the specific circumstances of the respective countries and acknowledge the progress that
could realistically be expected within a particular period of time. Assessments and
recommendations for rectification in standards supervision and other means of assistance at
the ILO’s disposal should mesh without leaving gaps. Thirdly, the systematic reference made
by the Committee of Experts in its observations to the discussions and conclusions of the
Conference Committee reflected growing integration of the activity of the two main
supervisory bodies, which constituted a key positive development. With reference to the
continuous reproduction of considerations of the Committee on Freedom of Association in
certain observations on the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), and on Convention No. 98, the Employer members recalled the
distinct mandates of the Committee of Freedom of Association and the Committee of
Experts and the fact that the Committee of Experts was called upon to analyse, in certain
cases, only the legislative aspects of the Committee on Freedom of Association cases.
38. The Employer members further made a number of constructive proposals to make standards
supervision more effective, transparent, relevant and sustainable: (i) in view of the need to
make the report of the Committee of Experts more reader-friendly, transparent and relevant,
the Employer members, observing that the outcome of the Committee of Experts’
subcommittee on working methods was not reproduced in the report, proposed to set up a
15 Part I/12 ILC106-Record of Proceedings 15-PI-En.docx
joint working party of members of the two bodies to look into further improvements;
alternatively, members of the Committee of Experts could be invited to participate in special
meetings with members of the Conference Committee to examine possible enhancements of
its working methods. In this way, the cooperation between the two pillars of the regular
supervisory system, and hence its effective functioning and cohesion, could be strengthened;
(ii) it would be desirable that the text of all submissions made by employers’ and workers’
organizations to the Committee of Experts be made available via a hyperlink in the electronic
version of its report and on the NORMLEX website, should the organizations so desire;
(iii) as stated in the 2017 Joint Position of the Workers’ and Employers’ groups, it was
expected that mission reports regarding the Committee’s conclusions, or a summary with
the non-confidential concrete results of the mission, be published in NORMLEX; and
(iv) the dedicated web page for the 2017 Conference Committee should be further expanded,
for instance by adding information concerning the tripartite deliberations, including written
submissions made by constituents.
39. Finally, the Employer members raised three issues of concern in the report of the Committee
of Experts. Firstly, given the increase in the number of cases of serious failure to report as
compared to last year, they suggested an in-depth discussion and specific measures to be
considered in the next working methods meeting of the Conference Committee. The
Employer members inquired as to the concrete measures taken by the Office to ensure fuller
submission of reports and responses to the Committee of Experts’ comments, specifically in
regard to those countries with a long history of failure to report. Secondly, they expressed
concern at the heavy workload of the Committee of Experts owing to the ever-rising number
of ratifications and reports to be examined. Measures used so far, such as extending reporting
intervals, seemed to have been stretched to their limits. It was necessary to focus reporting
on essential regulatory issues in ILO Conventions and to consider concentration,
consolidation and simplification of the standards system and its supervision as a sustainable
way forward. The Employer members had high expectations in this regard concerning the
work of the Standards Review Mechanism Tripartite Working Group. On the basis of the
information in paragraph 38 of the report, they inquired how many reports had not been
brought to the Committee of Experts’ attention because of lack of time or resources and what
measures would be adopted to avoid the examination of reports with outdated information.
Thirdly, the Employer members reiterated their belief in fundamental principles and rights
at work, including freedom of association, as the foundation for democracy. At the same
time, they emphasized their disagreement with the direct connection created by the
Committee of Experts between Convention No. 87 and the regulation of the right to strike,
as well as the ensuing extensive interpretation in this regard. They highlighted the fact that,
out of 64 observations, 45 dealt with the right to strike and that, out of 62 direct requests,
51 dealt in one way or another with the “right to strike” and that, out of these 51 direct
requests, 22 dealt exclusively with the right to strike. The Employer members were therefore
bound to reiterate their deep concern that the right to strike remained a major, and possibly
the main, issue of the supervision of Convention No. 87. Given that the Committee of
Experts had continued to reaffirm its position in this respect, they were obliged to continue
expressing their divergent views so as to avoid any misunderstanding in the form of tacit
acceptance. Observing that the Committee of Experts’ interpretations on the subject had
enjoyed limited support from the Government group at the March 2017 discussions of the
Governing Body, the Employer members emphasized that requests of the Committee of
Experts to align national law and practice on this controversial matter were non-binding, and
that there was no reporting obligation for governments to provide information concerning
law and practice on the right to strike. Finally the Employer members highlighted that the
conclusions of the Committee on the Application of Standards would not contain requests
linked to the controversial observations on the right to strike and that the Office’s technical
assistance and follow-up of the conclusions would need to focus exclusively on the
consensus agreed among constituents.
ILC106-Record of Proceedings 15-PI-En.docx 15 Part I/13
Statement by the Worker members
40. The Worker members welcomed the presence of the Chairperson of the Committee of
Experts in the general discussion of the Conference Committee. The annual report of the
Committee of Experts offered a global perspective on the implementation of international
labour standards in that it compiled governments’ reports on the application of standards and
also a significant number of observations made by workers’ and employers’ organizations.
Because of its independence and the quality of its analysis, the Committee of Experts was
able to promote in specific ways the observance of international labour standards and the
application thereof in the countries concerned, and the Conference Committee was able to
perform substantive work by enriching those standards with the interventions of its various
groups. Moreover, the General Surveys of the Committee of Experts cast light on the
prospects for the development of international labour standards. In view of the quantity of
information to be processed, the extensive, high-quality work of the Committee of Experts
was to be commended.
41. However, the Worker members made some suggestions with a view to improving the quality
of the report. Among other things, they suggested that the observations made by the social
partners, which in many cases contained information that could enrich the examination by
the experts, should be reflected more widely in the report. Moreover, the Worker members
were struck by the tone of the report in certain respects: some comments that had been made
for a number of years had disappeared even though the problematic situation remained. The
tone adopted was sometimes very mild given the seriousness of the violations described.
Some comments were so short that they made the task of selection and preparation of cases
difficult. Lastly, the Worker members expressed regret that numerous important elements
appeared in direct requests and not in the observations of the Committee of Experts. In order
to improve readability in certain cases, it was suggested that such information be reproduced
in the report of the Committee of Experts.
42. The Worker members’ remarks regarding the Committee of Experts’ report should be taken
constructively; they did not call into question the action of the Committee of Experts, in
relation to which it was necessary to acknowledge a certain amount of interpretation with
respect to evaluating the conformity of national legislation and the application thereof with
international labour standards. Moreover, the aim of uniformity in the observations of the
Committee of Experts was to help ensure legal certainty for member States and to
guaranteeing a certain predictability. Lastly, the collegiate composition of the Committee of
Experts, whose members originated from regions with different legal, economic and social
systems, ensured balanced, independent and impartial work, thereby reinforcing the
authority of the observations and recommendations made. The Worker members wished to
express once again their confidence in the work of the Committee of Experts and indicated
that the workload of the latter would be one of the aspects considered when evaluating and
improving the working methods of the ILO supervisory mechanisms with a view to
strengthening them.
43. The Worker members wished to respond to the comments of the Employer members on the
treatment of the right to strike in the Committee of Experts’ report. While recalling the joint
position adopted by the Workers’ and Employers’ groups in February 2015, which was
reaffirmed at the Governing Body in March 2017, and also the statement of the Government
group, the Worker members reiterated that their position on the right to strike in the context
of Convention No. 87 had not changed; they considered that the right to strike needed to be
recognized in the context of the aforementioned Convention since that right was linked to
freedom of association, which was a fundamental right and principle of the ILO. However,
it had never been a question of the Worker members claiming that the right to strike was
absolute; if evidence of that was required, it sufficed to consult the numerous consensual
decisions adopted in that regard within the Committee on Freedom of Association.
Document No. 270
ILC, 107th Session, 2018, Report of the Committee on the
Application of Standards, paras 46, 51
ILC107-PR9A-Part I-En.docx 1
International Labour Conference
9A
PART ONE
Record of Proceedings
107th Session, Geneva, May–June 2018
Date: Thursday, 7 June 2018
Third item on the agenda: Information
and reports on the application of
Conventions and Recommendations
Report of the Committee on
the Application of Standards
PART ONE
GENERAL REPORT
Contents
Page
A. Introduction ...................................................................................................... 3
B. General questions relating to international labour standards ........................... 8
C. Reports requested under article 19 of the Constitution .................................... 19
D. Compliance with specific obligations .............................................................. 36
E. Adoption of the report and closing remarks ..................................................... 42
Annex 1. Work of the Committee ................................................................................... 45
Annex 2. Cases regarding which governments are invited
to supply information to the Committee .......................................................... 59
14 ILC107-PR9A-Part I-En.docx
45. The Employer members also raised a number of concerns relating to the regular supervision
of standards: (i) given the continued failure of many governments to comply with their
reporting obligations, they trusted that the present efforts to streamline reporting, including
extending the possibilities for e-reporting as considered by the Governing Body in March
2018, would facilitate reporting and increase reporting rates in the future. Nevertheless, more
fundamental steps were needed to respond to this issue. In particular, consolidation,
concentration and simplification of ILO standards themselves would be required. This had
already been achieved to a significant extent in the field of maritime labour standards, and it
was hoped that the work of the Standards Review Mechanism Tripartite Working Group
would also lead to progress in this respect in other standards areas; (ii) the criteria concerning
the differentiation between observations and direct requests as described in paragraph 41 of
the Committee of Experts’ report, in particular, the criteria termed “primarily of a technical
nature”, for direct requests and “important discrepancies” for observations, were not entirely
clear and gave rise to some confusion. In many cases, it was difficult to understand why a
comment had been classified in the chosen category as opposed to the other. This was
important because direct requests were not included in the report of the Committee of
Experts. By making comments and recommendations to governments in the form of direct
requests, a major part of the substantive issues relating to the application of ratified
Conventions was removed from tripartite supervision. The Employer members therefore
called on the Committee of Experts to make all comments that concerned compliance issues
and respective recommendations in the form of observations; (iii) the Employer members
also expressed concern with regard to the decision of the Committee of Experts to depart
from the regular reporting cycle in some cases and not in others. While they recognized the
discretion of the Committee of Experts in this respect, they also emphasized that, in the spirit
of good governance, there should be transparency surrounding the reasoning when the
reporting cycle was altered. In future reports, relevant information on similar cases should
be provided by the Committee of Experts; and (iv) the Employer members raised concerns
with regard to the discrepancy that might arise between the Conference Committee’s
conclusions and the comments of the Committee of Experts, referring to a case in relation to
which the Committee of Experts had noted with satisfaction action taken by the Government
that clearly disregarded the Conference Committee’s own conclusions; they called upon the
Committee of Experts, when making assessments, to duly take into account the conclusions
of the Conference Committee which reflected tripartite consensus.
46. The Employers members reiterated their belief in fundamental principles and rights at work,
including freedom of association, as the foundation for democracy. At the same time, they
emphasized their continued disagreement with the direct connection made by the Committee
of Experts between Convention No. 87 and an explicit right to strike, and with its broad
interpretation in this respect. They highlighted the fact that, in the Committee of Experts’
Report, out of 49 observations on Convention No. 87, 33 dealt in one way or another with
the right to strike, which included comments that dealt exclusively with the right to strike.
The Employer members wished to put on record that they did not recognize the Committee
of Experts’ interpretation of a right to strike under Convention No. 87 and that they firmly
maintained their dissenting position on this issue. Additionally, they expressed concern
about the frequent reference by the Committee of Experts to cases examined by the
Committee on Freedom of Association. They stressed that the Committee of Experts and the
Committee on Freedom of Association had different legal bases and mandates. While the
situations that the Committee on Freedom of Association and the Committee of Experts were
confronted with might often be similar, the important differences between the two
procedures should not be disregarded when making such references.
ILC107-PR9A-Part I-En.docx 15
Statement by the Worker members
47. The Worker members welcomed the presence of the Chairperson of the Committee of
Experts in the general discussion of the Conference Committee. They observed that the
world was currently experiencing upheaval in several respects: (i) the globalization of the
economy was allowing the free movement of capital with the sole objective of achieving
profit, which often had detrimental social and environmental consequences; (ii) climate
change and environmental issues would give rise to an increasing number of work-related
problems; and (iii) armed conflict was laying waste to certain whole regions. Those three
phenomena were closely linked and were behind the massive migratory flows which were
raising fundamental questions concerning how work-related issues should be addressed in a
context which was also characterized by the emergence of authoritarian regimes in certain
countries that were not very respectful of civil liberties and fundamental rights. The
problems that arose in that regard constituted challenges for the ILO, in which the Committee
had an important role to play as one of the two pillars of the Organization in the supervisory
system for international labour standards, alongside the Committee of Experts.
48. The Worker members welcomed the extensive references in the report of the Committee of
Experts to the conclusions of the Conference Committee, which was a significant
development. They suggested, however, that the Committee of Experts might examine in
greater detail the manner in which each of the recommendations was given effect by the
governments concerned. They also welcomed the initiative by the Committee of Experts to
ensure a better balance between the various types of Conventions in the selection of cases
with a double footnote. The Committee of Experts should pay as much attention as possible
to the so-called technical Conventions.
49. The Worker members shared the concern of the Committee of Experts in relation to the
backlog accumulated by many governments in presenting their reports. Only 38.2 per cent
of the reports requested had been received by 1 September 2017, which was a lower rate
than the previous year. Such delays were detrimental to the quality of the work carried out
by the Committee of Experts. They therefore called on governments to comply with their
reporting obligations within the required time limits. They were however aware of the fact
that such failings were not always intentional, but were due to practical difficulties. The
technical assistance provided by the Office in this respect was valuable and reflection was
required on the best way in which it could be reinforced. They also echoed the comment by
the Committee of Experts that several governments were still not fulfilling their obligation
to communicate the reports beforehand to workers’ and employers’ organizations. Those
cases of failures offered an indication of the importance accorded to dialogue and concerted
social action in the countries concerned.
50. Responding to certain proposals made during the discussions, the Worker members indicated
that: (i) the observations in the Committee of Experts’ report were directed at stakeholders
who were accustomed to the particular vocabulary used, the governments and the social
partners and should therefore respond only to the need for clarity and precision. The
Employer members’ proposal to simplify the vocabulary used in the Committee of Experts’
report should therefore be subject to an in-depth discussion; (ii) they did not support the
Employer members’ proposal to publish the observations communicated to the Committee
of Experts by workers’ and employers’ organizations which so agreed, as that risked
undermining the discretion and independence of the Committee of Experts; (iii) the
explanation of the circumstances that could result in an interruption of the reporting cycle in
paragraph 64 of the Committee of Experts’ report seemed clear and sufficient. Such
circumstances constituted safeguards intended to maintain the effectiveness of the regular
supervisory system; and (iv) the opportunities for exchanges between the Conference
Committee and the Committee of Experts, which were already in place, were sufficient and
it did not seem necessary to set up more.
16 ILC107-PR9A-Part I-En.docx
51. Responding to the comment by the Employer members, who had recalled their position
concerning Convention No. 87 and the right to strike, the Worker members wished, in turn,
to recall that they considered that the right to strike was recognized within the framework of
Convention No. 87. That right was related to the exercise of freedom of association, which
was not only a fundamental ILO principle and right but also a fundamental element of all
democracies. In that regard, the Worker members recalled that the United Nations Special
Rapporteur on the rights to freedom of peaceful assembly and of association had indicated
that the right to strike was enshrined in international law and that its protection was necessary
to ensure fair, stable and democratic societies. They recalled the constructive and concerted
work carried out in the Committee since 2015 to establish effective regular supervisory
mechanisms and hoped that those mechanisms would continue to be strengthened, beyond
differences in viewpoints, in order to achieve the objectives of the ILO.
Statement by Government members
52. The Government member of Bulgaria, speaking on behalf of the European Union (EU) and
its Member States, the candidate countries Montenegro, Serbia and Albania, the potential
candidates Bosnia and Herzegovina and Georgia, emphasized that the regular and successful
monitoring of the application of international labour standards was crucial to ensure the
mandate and authority of the ILO and welcomed the recent changes made to the functioning
of the Conference Committee. Given that the improvement of the working methods of the
Conference Committee was under way, she made a few comments and recommendations in
that connection: (i) issues covered by the complaints procedure under article 26 of the ILO
Constitution should, to the extent possible, not be discussed in the Conference Committee
to avoid duplication; (ii) assessing the seriousness of some cases, based on the report of the
Committee of Experts, was sometimes challenging, particularly when the report did not
contain up-to-date information, and she therefore strongly encouraged governments on the
preliminary list to provide the Office with any available information once the list was issued,
which should be shared with all ILO constituents. In this respect, it would be useful to have
a clear assessment of each case by the Committee of Experts on the situation. In some cases,
the assessments in the report related only to specific aspects, which did not provide a clear
overall picture of the level of compliance with the Conventions in question. In other cases,
the Committee of Experts only referred to the observations of the social partners and it was
difficult to evaluate the seriousness of the situation from the report; (iii) while the constraints
of the Workers and Employers relating to internal consultations were understandable, having
the final list of cases when the Conference Committee had already started made preparation
more complicated. It was therefore essential to have available, for each case discussed in the
Conference Committee, a clear description of the issue at stake, along with the most up-todate
information and opinions of the Committee of Experts to allow for an informed and
fruitful discussion; (iv) General Surveys should assist and inform the discussion of the
Standards Review Mechanism Tripartite Working Group, in its task to update and modernize
the body of Conventions and Recommendations. Outcomes of the Tripartite Working Group
discussions could also feed into the General Survey discussion of the Conference
Committee. The results of the discussions in the Standards Review Mechanism Tripartite
Working Group and on the General Surveys could then be communicated to the Governing
Body for further discussion.
53. The Government member of Brazil supported the request made by the Employer members
that information should be provided by the Committee of Experts in relation to each
individual case where it had departed from the regular reporting cycle. He emphasized that
this would respond to the need for transparency and enhanced legal certainty in the existing
supervisory procedure.
Document No. 271
ILC, 111th Session, 2023, Report of the Committee on the
Application of Standards, paras 44, 93, 147-148
ILC.111/ Record No. 4A/P.I
Record of Proceedings 4A
International Labour Conference – 111th Session, Geneva, 2023
Date: 16 June 2023
Part One
Third item on the agenda:
Information and reports on the application of
Conventions and Recommendations
Report of the Committee on the Application of Standards
Part One
General Report
Contents
Page
A. Introduction ........................................................................................................................................ 3
B. General questions relating to international labour standards ................................................... 10
C. Reports requested under article 19 of the Constitution .............................................................. 31
D. Compliance with specific obligations .............................................................................................. 36
E. Conclusions adopted following the examination of the individual cases ................................. 40
F. Adoption of the report and closing remarks ................................................................................. 62
Annex I ....................................................................................................................................................... 67
Annex II ...................................................................................................................................................... 82
ILC.111/Record No. 4A/P.I 9
Adoption of the list of individual cases
38. The Committee adopted, during the course of the opening sitting, the list of individual cases
to be discussed. 3
39. Worker members: We welcome the adoption of the list. Without being an exact science, its
formulation tries to take into account certain criteria such as regional balance, the nature of
the Conventions or the degree of seriousness of the situation. My Employer counterpart and I
will be at the disposal of the governments for the explanatory meeting that is scheduled
immediately after our session.
40. The need to take several criteria into account means that many cases that appear on the
preliminary list deserve to be on the final list but are not. There are a few to which I would like
to draw particular attention. The case of China continues to hold our full attention. The written
information supplied by the government after the publication of the preliminary list contains
some interesting details. We note that the government is committed to implementing our
Committee’s conclusions, which date back to last year. We hope that this will be done as soon
as possible and that they will be fully implemented.
41. I would also like to express the concern of the Worker members about the situation in Tunisia.
Freedoms in the country continue to be restricted. Trade union freedoms, in particular, are
being seriously curtailed. The practices that we are observing are detrimental to the interests
of Tunisian workers and violate their rights. The Tunisian Government cannot ignore the fact
that the trade union movement in the country has always been a driver and guarantee of
stability. We therefore call on it to respect individual freedoms, and in particular freedom of
association. Lastly, we would like to raise the case of France, where protection against unfair
dismissal has been severely limited, as part of a more general undermining of workers’ rights
in the country, which heightens our concerns. I reiterate my hope that all parties will approach
the discussion of the 24 cases in a constructive and respectful manner.
42. Employer members: Like the Worker members, we too are satisfied that the list of cases has
been adopted. As everybody knows, this is a negotiated list and therefore represents
compromises that had to be made regarding the cases that will be heard and the ones that will
not. Ideally, we would have liked to hear the Committee examine more cases of progress.
Nepal is the only example on this year’s list that would come under that heading. We would
like to see more cases where compliance with Conventions would enhance the creation of a
sustaining and sustainable environment for business growth and job creation. In respect of
fundamental Conventions, we note that there are no Conventions on occupational safety and
health (OSH) on the list this year, which is a pity given that last year we celebrated the elevation
of OSH to the status of fundamental principles and rights at work.
43. Conversely, we feel that certain cases should not have been included in the list. I won’t go into
the details because these will become apparent when these cases are discussed. Our concerns
relate to the fact that each has characteristics that deviate from the core mandate of this
Conference Committee, which is to examine compliance with the specified Convention. Broadly
speaking, these cases fall into three main groups: (i) where discussions to address certain
issues of application are already well advanced at the national level; or (ii) where discussions
have previously taken place in the Conference Committee and the details haven’t changed; or
(iii) where cases concern issues that exceed the ambit of ILO Conventions, for instance the
prevailing political environment in the country. In our view, this Committee should be focused
3 International Labour Conference, 111th Session, Committee on the Application of Standards, CAN/D.2.
ILC.111/Record No. 4A/P.I 10
on examining a case strictly in the context of the Convention that is the subject of the
Committee of Experts’ report. Allowing ourselves to drift from this focus invites criticism of the
relevance and effectiveness of our work that none of us wants.
44. Secondly, and at the outset of our work, I would like to remind the Committee that as in
previous years, any issues referring to a right to strike in the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), which, as we all know, has been
contentious, will not be included in the conclusions of cases. This will apply in this year’s context
to the cases of Guatemala, Liberia, Madagascar, Netherlands–Sint Maarten, Nicaragua, Peru,
the Philippines and the United Kingdom of Great Britain and Northern Ireland. As many of you
will recall, in previous Committee sessions we have expressed our concerns with the
Committee of Experts’ extensive, yet non-binding, assessment of Convention No. 87 on this
point. We have pointed out on many occasions the legislative history of Convention No. 87,
documented in the proceedings of the International Labour Conference. It is clear from these
records that the proposed Convention related only to freedom of association and not to the
right to strike.
45. Having commented briefly on the areas of concern, let me turn to what we would like to see in
the future, albeit in general terms. Overall, we want to see a balanced list of cases as we also
heard from the Worker members. This balance would take into account regional spread,
different types of Conventions (fundamental, priority, governance and technical), as well as
balance between those of primary interest to Worker and Employer members respectively.
Such a list can provide enhanced benefits because the guidance derived across a broader
range of Conventions is likely to be of benefit to a broader range of countries in a given
reporting cycle. This should also include a number of cases of progress. We need to show the
global community that the Committee not only deals with issues of non-compliance but can
also contribute to improvements in the application of ILO Conventions. With these remarks I
commit to working constructively with our social partners in addressing the cases we have
before us now. As I said at the outset, the Employer members accept the list of cases.
B. General questions relating to international labour standards
Statement by the representative of the Secretary-General 4
46. Representative of the Secretary-General: As the representative of the Secretary-General for
your Committee, I have the privilege of leading the team that stands ready to provide you with
all necessary assistance to ensure that the Committee functions smoothly and effectively.
47. At the outset, I would like to thank Professor Ago, the Reporter of the Committee of Experts on
the Application of Conventions and Recommendations, and Professor Evance Kalula,
Chairperson of the Committee on Freedom of Association, who will address your Committee
to present the reports of their respective committees.
48. My brief intervention will cover two main points: (i) the constitutional mandate and work of
your Committee; and (ii) a brief up-date of key developments in respect of the ILO’s normative
work.
49. Your Committee is a standing committee of the International Labour Conference. Since 1926
when it was established, the Committee has met at each session of the International Labour
4 International Labour Conference, 111th Session, Committee on the Application of Standards, CAN/D.3.
ILC.111/Record No. 4A/P.I 20
level of collective bargaining, whether Article 4 provides for a hierarchy of norms according to
which collective agreements cannot depart from applicable legislation; whether there is a legal
obligation for employers to negotiate under Article 4, or whether compulsory arbitration on
the sole initiative of a workers’ organization is compatible with the voluntary nature of
collective bargaining as reflected in Article 4; whether a country has the right to dictate when
a collective agreement should exist, and whether only a union should decide whether a
collective agreement should exist and the scale and scope of it. These are major questions that
we have – there are obviously many more.
93. With respect to the question of the right to strike in the context of Convention No. 87, the
Employer members noted that in the Committee’s report, out of the 63 observations on this
Convention, 49 relate partly or exclusively to the right to strike. Moreover, out of 42 direct
requests, 35 also deal, in one way or another, with the right to strike. We have recognized that
the right to strike has significant relevance for national and industrial relations systems and
that countries have established varied and specific legislative practices to deal with this issue.
We would nevertheless recall that the detailed interpretation and assessments by the
Committee of Experts on the right to strike have no basis neither in the text nor in the
legislative history of Convention No. 87. We would also like to remind the Committee of Experts
of the view of the Government group in the Governing Body, according to which the conditions
and practice of the right to strike is to be defined at the national level. In view of the recent
discussion on a possible referral of this contentious issue to the International Court of Justice
the Employer members are more than ever convinced that a realistic and sustainable solution
can only be found through discussion within the ILO’s tripartite fora and procedures. As the
interpretation of the Committee of Experts and the Office is at the origin of this dispute, we
once again respectfully call upon them to contribute to the search for a tripartite consensus
instead of remaining inactive and continuing as in the past.
94. In terms of the needs of sustainable enterprises, we would like to recall the importance of
paying more attention to these needs in standards’ supervision. We are of the opinion that the
Committee of Experts neglects this central question. Sustainable enterprises comply with
national laws and regulations and contribute to economic growth, employment creation and
socio-economic progress. The UN 2030 Agenda has recognized the central role of enterprises
in solving societal challenges through responsible business conduct, innovation and
collaboration. The ILO Centenary Declaration states that international labour standards also
need to respond to the changing patterns of the world of work, protect workers, take into
account the needs of sustainable enterprises and be subject to authoritative supervision.
Giving due attention to the needs of sustainable enterprises would improve the balance of the
Committee of Experts’ observations and thus relevance and acceptance of their
recommendations.
95. Lastly, on the topic of social justice, with regard to the section in the Committee of Experts’
Report on the “Application of International Labour Standards and the quest for social justice in
the context of protracted and interlocking crises”, in particular, the Committee of Experts’
explicit support for the launch of a Global Coalition for Social Justice and the urgent need of a
new social contract, we have concerns. These are not matters related to the supervision of
labour standards. The Committee of Experts has no mandate, in our view, to be a political
advocate. Our concern is deepened by the fact that these proposals are still all under
discussion and require adoption by the tripartite constituents in the competent ILO bodies. We
believe that the Committee of Experts should have recognized this and hope that it will exercise
more restraint on similar issues in future.
ILC.111/Record No. 4A/P.I 29
are not here to correct that report. The EU Members also drew attention to this just now in the
context of the discussion on the General Survey. We are not here to correct the report of the
Committee of Experts but to hold a calm dialogue on the relationship between our two
Committees. Saying that direct requests prevent this examination is a very risky statement, in
our view.
139. It has also been suggested once again that governments should undertake an evaluation
exercise before ratification. We would like to reassure everyone that to our knowledge no
government proceeds with ratification lightly. It is often the fruit of a long process which
includes a dialogue with the constituents, in consultation with the Office. But the more
problematic aspect of this statement is thinking that once conformity with a ratified
Convention has been achieved, it stays that way for ever. However, it often happens that a
government is in conformity and then the situation takes a turn for the worse. This, by the way,
is the whole raison d’être of the supervisory bodies: if ratification guaranteed conformity, we
would not be here today and the supervisory task would be irrelevant.
140. The Committee of Experts has also been accused of welcoming the idea of launching a coalition
on social justice on the grounds that this point is supposedly still under discussion at the ILO.
For us, this calls into question the autonomy of the Committee of Experts, whose members are
neither secretaries for the tripartite constituents nor their spokespersons. They have the
freedom to express their views on behalf of their Committee regarding a proposal which forms
part of the mandate of the Organization, even if the exact procedures involved are not yet
known.
141. The position of the Employer members regarding the right to strike has also been recalled. We
have made several points in this regard but wish to reiterate our refusal to see our Committee
become the forum for a discussion which should be held elsewhere. Nor can I see the role that
the Committee of Experts might play in the solution to this divergence of views, given that the
ILO Constitution provides for specific means to achieve that, as we have stated on several
occasions.
142. I will not dwell on the Employer members’ unilateral interpretation of Article 4 of Convention,
No. 98, as we have already addressed this point in the past and our views are known and
remain unchanged. I will merely underline the fact that persisting with this stance is
incompatible with respect for the autonomy of the Committee of Experts.
143. The Worker members consider that discussions are needed to enable progress towards
effective implementation of international labour standards and suggest vigorously that the
proposals they have made to improve the impact of the supervisory system are analysed and
made the subject of an in-depth discussion. Modernization is not about endlessly reviving
outmoded discussions; rather, it is about considering ways of creating an outlook for the
future.
144. Employer members: At the outset, I would like to thank the Government and the Worker
members for their rich and interesting contributions to the General Discussion and to the
discussion on the General Survey. We also greatly appreciate the reply of the representative of
the Secretary-General and we await with interest the statement from Professor Ago in relation
to the Committee of Experts. Indeed, the presence of Professor Ago on behalf of the
Chairperson of the Committee of Experts and the ongoing dialogue between the Committee
of Experts and the Conference Committee is important, not only for the ILO constituents to
better understand standards-related requirements, but also to facilitate the Committee of
Experts’ understanding of the realities and needs of the users of the supervisory system.
ILC.111/Record No. 4A/P.I 30
145. It is thus of utmost importance in our view to build as much convergence as possible between
the Conference Committee and the Committee of Experts in order to provide effective and
practical guidance to tripartite constituents in ILO Member States. We wish to respond to some
of the remarks that were made by various contributors earlier in the General Discussion.
146. First, we consider the work of the Committee of Experts as vital to the successful functioning
of the Conference Committee and the regular standards supervision as a whole. In this regard,
it is equally vital that the Conference Committee provides its views on the interpretation and
application of international labour standards in an independent manner, while taking into
account the reality of the world of work. We agree with the Worker members that standards
supervision must preserve balance. However, this means that the Committee of Experts should
consider both the perspectives of the Worker members and the promotion of an enabling
environment for sustainable enterprises, as set out in the ILO Centenary Declaration. Contrary
to the Worker members’ views, the consideration of one does not mean undermining the
other. We believe the Committee of Experts should in fact promote both of these views equally.
147. Second, once again and regrettably, we have to come back on the view that the Conference
Committee had no mandate to discuss the right to strike. The Committee has a comprehensive
competence to examine the compliance by countries with ratified Conventions. As long as the
Committee of Experts continues to provide detailed interpretation of the right to strike, in the
context of Convention No. 87, the Conference Committee must be able to at least respond. We
do not consider that the proposals discussed by the Governing Body at its March 2023 session
to refer the dispute to the International Court of Justice or an in-house tribunal are in fact the
most effective means of reconciling these different views. For a start, these proposals do not
take into account that the origin of the dispute is in fact the interpretation by the Committee
of Experts. In other words, without that, we would not have this dispute. We simply request
the Committee of Experts and the Office, as a key part of the standards supervisory bodies, to
facilitate a solution rather than simply continue down the current path. We strongly believe
that the question of whether there should be international rules on the right to strike and if so,
what they should look like, can only be meaningfully addressed through social dialogue and
the available and competent ILO bodies. For example, an ILO tripartite technical meeting, or a
dedicated discussion at the Conference on the law and practice in Member States on the right
to strike, or a mediation process, or even the possibility of standard-setting, could all be
considered to try and settle the existing interpretation issue. We regret that such tripartite
events have never taken place before and we strongly believe that the time has come to look
at this as an option. Such an approach could ensure that all ILO constituents actively engage
in the process, that solutions are based on consensus and that outcomes adopted are
universally relevant and accepted.
148. That said, let me be clear that we do not mean to instruct the Committee of Experts on how to
provide non-binding assessments, but we do consider that it is important for that Committee
not to create new obligations beyond what has been intended and agreed by the tripartite
constituents at the Conference. In other words, it is not acceptable that the flexibility for
implementation deliberately granted in Conventions to Member States is then later restricted
by unilateral interpretations by the Committee of Experts.
149. Let me turn now to the General Survey. We made comprehensive submissions to the General
Survey and we heard many other views as well. We agreed with the Committee of Experts on
many points but also respectfully expressed our disagreement on some of its views and
findings. In doing so, we have sought to contribute to a broader and more factual debate and
we thank others who have done so. We considered the instruments selected for the General
Survey to be particularly timely and pertinent for us in present times, notably due to the fact
Document No. 272
Case No. 1304 (Costa Rica), Representation made by the
Confederation of Costa Rican Workers (CTC), the
Authentic Confederation of Democratic Workers (CATD),
the Unity Confederation of Workers (CUT), the Costa
Rican Confederation of Democratic Workers (CCTD) and
the National Confederation of Workers (CNT) alleging the
failure by Costa Rica to implement several international
labour conventions including Conventions Nos 11, 87, 98
and 135, Official Bulletin, vol. LXVIII, 1985, paras 95–102
INTERNATIONAL LABOUR OFFICE
OFFICIAL BULlETIN
Vol. LXVIII, 1985 Series B, No. 2
Reports of the Committee on Freedom of Association
(239th and 240th Reports)
239t h REPORr
Introduction ••••••••••••••••••••••······•····••
Ca ses not calling for further examination ••••••
Case No. 1292 (Spain); Complaint presented by
the Professional Association of Munc ipal
Health and Welfare Employees against the
Government of Spain
The Committee's conclusions •••••••••··•••••
The re commendation of the Committee ••••••••••
Case No. 1302 (Colombia); Complaint presented
by the World Federation of Trade Unions
against the Government of Colombia ........ .
The Committee's conclusions ............... .
The recommendation of the Committee ••••••••••
Paragraphs
1-29
30-81
305
41-44
45
46-55
52-54
55
Pages
1-9
10-21
10-13
12-13
13
13-15
15
15
240th Report
- The Legal Department must at the same time request the
Ministry of Justice to take steps with the Public Ministry
for the institution of legs 1 proceedings against the
instigators of the illegal strike movement and those
responsible for it.
- You are requested to inform the President's Office of any
abnorma 1 movement or situation connected with the matters
referred to in· this Official Circular.
96. With regard to this official circular of August 1983
concerning the illegality of any strike in the public sector, the
Committee considers that such matters are not within the competence of
the administrative authority.
97. As regards the alleged application of penal sanctions for
trade union activities, the Committee observes that the complainants
have supplied specific information on only one case. This is a
judgement of 27 March 1984 sentencing ten leaders of the Trade Union
of the National Bank to six months' and one day's imprisonment
(deferred for three years) and a fine of 1,200 colones each, in
particular for abandonment of duty and incitement to collective
abandonment of public duty.
98. From the reasons adduced for this judgement it may be
inferred: (1) that the strike was declared as a consequence of the
refusal of the budgetary authorities to approve the budgetary
implications of a wage adjustment agreement to reflect the rise in the
cost of living, concluded between the Union and the Bank; (2) that
the strike lasted three days (from 26 to 28 September 1983) and was
followed by 90 per cent of the workers; (3) that the legislation does
not authorise strikes in state public service bodies such as the
National Bank of Costa Rica and that this was the reason for the
imposition of the penalties mentioned in the previous paragraph.
99. In this respect the Committee wishes to recall that the
right to strike may be prohibited or largely restricted with respect
to public servants acting in their capacity as agents of the public
authorities (among whom those performing bank services can obviously
not be counted) or with respect to workers in essential services in
the strict sense of the term (those whose interruption would endanger
the life, personal safety or health of the whole or part of the
population). [See, for example, 233rd Report, Case No. 1225
(Brazil), para. 668. J The Committee has considered that the banking
sector is not an essential service in the sense mentioned [See 233rd
Report, Case No. 1225 (Brazil), para. 668] and that nobody should be
deprived of his liberty or subjected to penal sanctions for the mere
fact of organising or participating in a peaceful strike. [See 230th
Report, Case No. 1184 (Chile), para. 282.] In addition, the
Committee has considered that the exercise of financial powers by the
public authorities in a manner that prevents compliance with
collective agreements already entered into by public bodies is not
consistent with the principle of free collective bargaining. [See,
147
Document No. 273
Case No. 1364 (France), Representation against the
Government of France made by the General Federation of
Labour; Complaint against the Government of France
presented by the Trade Unions International of Textile,
Clothing, Leather and Fur Workers, Official Bulletin,
vol. LXX, 1987, paras 138–142
250th Report
136. In previous cases, the Committee has considered that the
extension of an agreement to an entire sector of activity contrary to
the views of the organisation representing most of the workers in a
category covered by the extended agreement is liable to limit the
right of free collective bargaining of that majority organisation and
that this system makes it possible to extend agreements containing
provisions which result in a worsening of conditions of work of the
category of workers concerned. [See, inter alia, 217th Report, Case
No. 1087 (Portugal), para. 223.]
137. However, in the case under consideration the Committee
observes that the legislation does contain certain protective clauses,
since extension presupposes that the National Collective Bargaining
Committee has been consulted and that a representative workers'
organisation has signed the text. Under these circumstances, and
since the legislation sets objective criteria for determining the
representativeness of trade union organisations, the Committee
considers that this aspect of the representation does not call for
further examination.
V. Repression of the right to strike
138. The allegations referred to the infringement of the right to
strike principally by means of excessive recourse to legal proceedings
by nationalised and private enterprises, the expulsion of strikers and
the use of subcontracting or temporary workers to replace strikers.
139. The Government, noting that Conventions Nos. 87 and 98
contain no allusion to the right to strike, points out that the right
is recognised in the Preamble of the French Constitution, which
stipulates that it must be exercised within the framework of the laws
that govern it. The Council of State has added to this that the right
to strike, like any other right, must be limited in order to avoid
abuse or its being exercised in defiance of public order. Moreover,
in a November 1982 ruling on a case cited by the CGT, the Court of
Appeal has stated that trade unions should be deemed liable for events
in which they have actually participated if the events constitute a
penal offence or cannot be ascribed to the normal exercise of the
right to strike.
140. As it has emphasised on numerous occasions, the Committee
considers the right to strike to be a legitimate means of defending
the workers' interests. [See 244th Report, Case No. 1270 (Brazil),
para. 225.] The Committee must therefore consider whether the alleged
facts constitute an undue restriction of the exercise of the right to
strike.
141. The Commit tee notes that, where strikers or trade unions
have been convicted by the courts in connection with strikes referred
to by the complainant organisation, it has been for illegal acts such
219
Document No. 274
Cases Nos. 1810 and 1830 (Turkey), Representation
made by the Confederation of Turkish Trade Unions
(TURK-IS) alleging non-observance by Turkey of
Convention No. 87; Complaint against the Government
of Turkey presented by the Confederation of
Progressive Trade Unions of Turkey (DISK), Official
Bulletin, vol. LXXIX, 1996, paras 61–63
303rd Report
of the workers in the undertaking (section 12). In view of the numerous and serious
specific allegations presented by DISK, which relate to a large number of sectors of
economic activity in which workers are not covered by a collective agreement due to the
disptftes over the question of trade union representativity, the Committee strongly urges
the Government to amend its legislation so as to bring it in line with the requirements
of Conventions Nos. 87 (Article 2) and 98 (Article 4).
58. Maintenance of the ban on belonging to more than one trade union (section
22 of the Act on trade unions). The Committee notes that the Government merely
indicates that this prohibition aims at avoiding proliferation of rival trade unions. The
Committee nevertheless considers that, if workers are employed in several occupational
activities, they should be able to join the trade union of their choice covering these
diverse activities.
59. Maintenance of the limit on the amount of trade union dues (section 23). The
Committee notes that the Government merely points out that this measure aims to protect
the workers. The Committee considers that it should be up to the constitutions of the
trade unions to make a decision in this matter. •
60. Maintenance of the requirement of ten years of effective service in the branch
applicable to candidates for trade union elections (section 14). The Committee regrets
that the Government has not provided information on the measures it plans to take in this
respect. The Committee draws attention to the importance it attaches to the principles
under which workers' and employers' organizations have the right to freely elect their
representatives. Noting the specific allegations submitted by DISK in this respect, the
Committee expresses the firm hope that this provision, which is extremely prejudicial to
the interests of the trade unions, will be raised in the near future.
61. Banning of political strikes, sympathy strikes and strikes which are prejudicial
to society or destroy national wealth, excessive limitation on strike pickets together with
extremely heavy penalties of imprisonment for the trade unions (article 53 of the
Constitution and sections 25 and· 47, 70, 72, 73 and 79 of the Act on collective
agreements, strikes and lockouts). The Committee concludes that the excessive
restrictions on the right to strike imposed on workers constitute a serious violation of the
principles of freedom of association. It considers that these limitations would be
justifiable only if the strike were to lose its peaceful character. In any case, the general
banning of sympathy strikes is abusive, and workers should be able to carry out such
actions provided the initial strike that they are supporting is legal. Only the banning of
political strikes may be considered acceptable since purely political strikes do not fall
within the scope of the principles of freedom of association. [See Digest of decisions and
principles of the Freedom of Association Committee, 4th edition, 1996, para. 481 .]
62. Maintenance of the ban on strikes beyond essential services in the strict sense
of the tenn (sections 29 and 30 of Act No. 2822), compulsory arbitration and 60 days'
waiting clauses accompanied by penalties of imprisonment for offenders (article 54 of
the Constitution, sections 23, 37 and 75 of Act No. 2822). The Committee considers
that these restrictions on the exercise of the right to strike are much too broad. It insists,
in particular, that compulsory arbitration may be imposed only for essential services in
the strict sense of the term, i.e. those whose interruption would be likely to endanger the
life, personal safety or health of the whole or part of the population. Jn addition, the
general ban on strikes in banks and transport is not in conformity with the principles of
UBSYND\43-8B.E96 163
Reports of the Committee on Freedom of Association
freedom of association, and should the ref ore be lifted. Furthermore, it should be possible
to impose sanctions for strike action solely in cases in which the action is not in
conformity with the principles of freedom of association, and such sanctions should not
be disproportionate with the severity of the offence involved; and this is not the case
when the strikers expose themselves to penalties of up to two years or even three years
in prison.
63. Severe restrictions on freedom of association resulting from the Act of 1985
on export processing zones. The Committee regrets that the Government has merely
confirmed the information submitted by the complainants about this allegation. It calls
attention to the importance it attaches to the respect of freedom of association throughout
Turkish territory and urges the Government to remove in the near future these restrictions
which are incompatible with the application of Conventions Nos. 87 and 98.
64. The Committee also notes with concern that the Government limits itself to
confirming that the TUMHABER-SEN trade union was dissolved by court order on the
grounds that the amendment to the national legislation following ratification of
Conventions Nos. 87 and 15 l had not so far been carried out and that no law yet existed
to grant this association legal personality. The Committee draws attention to the fact that
by ratifying Conventions Nos. 87 and 151 in July ,1993, the Government undertook to
ensure that the acquisition of legal personality by workers' and employers' organizations,
federations and confederations shall not be made subject to conditions of such a
character as to restrict the application of the provisions of the Conventions on freedom
of association and protection of the right to organize, and this appUes also to public
service trade unions. The Committee strongly urges the Government to take the necessary
measures to grant the TUMHABER-SEN trade union, as well as the other unions of civil
servants, legal personality.
65. Moreover, the Committee profoundly regrets that the Government restricts itself
to pointing out that the anti-union reprisal measures are a matter for the courts. It draws
attention to the fact that, in cases of dismissal of trade unionists on the grounds of their
membership of or their activities in a trade union, governments have repeatedly been
requested to take the necessary measures to allow trade union officers and members who
have been dismissed on grounds of their legitimate trade union activities to be reinstated
in their jobs and to apply the pertinent legal sanctions to the undertakings in question.
In this respect, the Committee notes with interest that the Labour Act will be amended
to allow reinstatement. It calls on the Government to keep it informed of developments
in the situation in this respect. Furthermore, in the opinion of the Committee,
governments should take the necessary measures to allow their labour inspectors to enter
freely and without advance warning the establishments under their supervision, and to
carry out the verification or inspections they deem necessary to ensure that the legal
provisions - in the matter of anti-union discrimination in particular - are strictly
observed [see Digest, op. cit., paras. 753 and 756]. The Committee strongly urges the
Government to take the necessary measures to guarantee workers effective protection
against acts of anti-union discrimination in conformity with the international undertakings
it made in ratifying Convention No. 98 in June 1970. •
66. Finally, in general, the Committee considers that Turkish trade union legislation
is too detailed and that it covers numerous questions which should be in the competence
of the constitutions of workers' and employers' organizations themselves. The
164 UBSYND\43-8B.E96
Document No. 275
Case No. 1971 (Denmark), Representation against the
Government of Denmark presented by the Association of
Salaried Employees in the Air Transport Sector (ASEATS)
and the Association of Cabin Crew at Maersk Air (ACCMA)
alleging non-observance by Denmark of Conventions
Nos 87 and 98, Official Bulletin, vol. LXXXII, 1999,
paras 52–61
Document No. 276
Report of the Commission of Inquiry appointed under
article 26 of the Constitution to examine the complaints
concerning the observance by Greece of Conventions
Nos 87 and 98 made by a number of delegates to the
52nd Session of the International Labour Conference,
Official Bulletin, vol. LIV, 1971, paras 260–261
^rn'^i -íí.
INTERNATIONAL LABOUR OFFICE
OFFICIAL BULLETIN
SPECIAL SUPPLEMENT
Vol/LIV, 1971 «lllUi» No. 2
CONTENTS
Report of the Commission Appointed under Article 26 of
the Constitution of the International Labour Organisation to Examine
the Complaints concerning the Observance by Greece of the Freedom
of Association and Protection of the Right to Organise Convention,
1948 (No. 87), and of the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98), Made by a Number of Delegates to the
52nd Session of the International Labour Conference
Paragraphs Page
CHAPTER 1
Filing of Complaints and Establishment of the Commission 1-8 1-7
Filing of Complaints 1-2 1
Provisions of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87\ and the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98) 3 2-4
Provisions of the Constitution of the International Labour Organisation concerning
Complaints Relating to Ratified Conventions 4 4-5
Summary of Measures Taken by the Governing Body Following 'hi Filing
of the Complaints 5-7 o
Composition of the Commission 8 6-7
CHAPTER 2
Complaints and Replies by the Government 9-41 8-12
Dissolution of Trade Unions and Confiscation of Assets 10-11 8
Deportation and Imprisonment of Trade Unionists 12-15 8
Arrest and Interrogation of Trade Unionists 16-17 9
Dismissals of Trade Union Officers by the Authorities 18-19 9
Price of this supplement (if purchased separately): 5 Swiss francs; 10s. Od. (£0.50); US$ 1.25
Findings
persons who have not worked during the previous six years from being elected to a
post at any level of a trade union organisation. It hinders the effective functioning
of trade unions since the activities and responsibilities of officers, at least from a
certain level, are such at present that these persons can no longer in practice carry
out a job in an enterprise. Finally, there is a risk that an employer by dismissing an
employee might thereby disqualify him from holding trade union office.
254. For all these reasons, the Commission considers that this provision imposes
requirements which run counter to Article 3 of Convention No. 87, which establishes
that workers' organisations shall have the right to elect their representatives in full
freedom.
Remuneration of Trade Union Officers, Staff and Legal Advisers.
255. Section 10 of this decree limits the remuneration which trade unions may
pay to the members of their executive committees, and to their staff and legal advisers.
256. No evidence was produced before the Commission to indicate that there
had been a general abuse in the payment of salaries to such persons in the Greek
trade union movement which might have justified the introduction of a provision in
these terms. The Commission also accepted the argument put forward that section 10
would have the effect of preventing trade union organisations from freely engaging
staff and legal advisers, or from maintaining the services of executive officers, who
might command higher remuneration than that permitted by the legislation. This
would again be detrimental to the efficient running of the trade union organisations
concerned.
257. The Commission considers that a provision of this nature constitutes an
infringement of Article 3 of Convention No. 87, which guarantees to workers' and
employers' organisations the right to organise their activities and provides that " the
public authorities shall refrain from any interference which would restrict this right
or impede the lawful exercise thereof ".
Dismissal of Trade Union Officers and Dissolution of Trade Unions.
258. Section 6 of the same Legislative Decree provides that trade union leaders
and representatives shall be dismissed from office by court decision if they become
involved in activities aimed against the integrity of the State, or its security or its
political or social regime. It also lays down that trade a union shall be dissolved by
order of the court if its purpose or activity is directed against the integrity of the
State or its security, or its political or social order, or the civil liberties of the citizen.
259. The language of this provision is very wide and much would depend on the
way in which it is interpreted and applied. So far no action has been taken under it
and the Commission considers that it would be premature to declare that any breach
of Convention No. 87 has been committed.
The Right to Strike.
260. The provisions laid down in section 3 of Legislative Decree No. 185 limit
the duration of a strike to three days unless a majority vote of a general assembly
of the union has been obtained, authorising strike action for a longer period. Any
decision to strike must be notified to the employers' association which is competent
to negotiate a collective agreement and also to the Ministry of Labour. Further,
59
Trade Union Rights in Greece
during any strike the trade union executive body shall ensure that the necessary
personnel is available for the supervision of the installations of the workplace.
Strikes are temporarily prohibited during mediation, according to section 4 of
Legislative Decree No. 185.
261. The Commission observes that Convention No. 87 contains no specific
guarantee of the right to strike. On the other hand, the Commission accepts that an
absolute prohibition of strikes would constitute a serious limitation of the right of
organisations to further and defend the interest of their members (Article 10 of the
Convention) and could be contrary to Article 8, paragraph 2, of the Convention,
under which " the law of the land shall not be such as to impair, nor shall it be so
applied as to impair, the guarantees provided for in this Convention ", including
the right of unions to organise their activities in full freedom (Article 3). The Commission
did not receive any evidence that the provisions of Legislative Decree No. 185
were such as to make strikes impossible in practice or limit them to the extent of
seriously restricting the rights guaranteed by the Convention. Moreover the Decree
in question has not been in force sufficiently long to enable the practical effects
thereof to be fully determined. The Commission believes that the absence of strikes
is attributable to the political climate which prevails in Greece rather than to the
legislation. In these circumstances, therefore, the Commission is not prepared to
conclude that the legislation amounts to a violation of the Convention.
Legislative Decree No. 186/1969.
Collective Bargaining.
262. Legislative Decree No. 186/1969 lays down precise qualifications which
must be fulfilled before any trade union organisation can be recognised as representative
and therefore capable in law of entering into negotiations for the conclusion
of a collective agreement. The fulfilment of these qualifications depends mainly
upon a specified number of members having voted at the most recent elections of the
organisation concerned. In addition, the legislation removes the right of the Greek
General Confederation ofLabour to conclude collective agreements fixing the national
minimum wage and empowers the Government to fix the minimum wage in the future.
263. The Commission notes that Article 4 of Convention No. 89 provides that
" measures appropriate to national conditions shall be taken, where necessary, to
encourage and promote the full development and utilisation of machinery for
voluntary negotiation between employers or employers' organisations and workers'
organisations, with a view to the regulation of terms and conditions of employment
by means of collective agreements ".
264. As regards the requirements for the acquisition of representative capacity,
however, the Commission recalls that the Committee on Freedom of Association
and the Committee of Experts on the Application of Conventions and Recommendations
have considered that, if more than one trade union organisation exists within
a particular category of workers it would not be incompatible with the freedom of
association Conventions to grant to the most representative union, determined
according to objective criteria, preferential or exclusive rights to conclude collective
agreements. The granting of such rights of representation for collective bargaining
cannot be considered in any way to constitute a discriminatory practice. The Commission
accepts this view.
60
Document No. 277
Report of the Commission instituted under article 26 of
the Constitution to examine the complaint on the
observance by Poland of Conventions Nos 87 and 98
presented by delegates at the 68th Session of the
International Labour Conference, Official Bulletin,
vol. LXVII, 1984, paras 517, 552–557
INTERNATIONAL LABOUR OFFICE
OFFICIAL BULLETIN
Vol. LXVII
SPECIAL SUPPLEMENT
1984
Report of the Commission instituted
under article 26 of the Constitution of
the International Labour Organisation
Series B
to examine the complaint on the observance by Poland
of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), and the
Right to Organise and Collective Bargaining
Convention, 1949 (No. 98), presented by
delegates at the 68th Session of the
International Labour Conference
136 Trade union rights in Poland
State, whereas, as the Commission has already observed, shortly before the
proclamation of martial law, the Congress of the organisation had adopted a
programme that was essentially of a trade union nature. It will further be observed
that the immense majority of the trade unionists interned were not subjected to any
subsequent judicial investigation. These various elements may justify the belief
that one of the aims of the Government, in depriving the majority of the leaders of
Solidarity of their freedom, was to suppress or prevent the activities and
development of the trade union movement embodied by this organisation and that
it therefore acted in violation of Article 3 of Convention No. 87.
516. As the Commission has already stated, the grounds for the sentences
pronounced by the courts were the organisation of strikes and participation in the
strikes or the distribution of publications of the dissolved organisation Solidarity.
The question that arises in these cases is thus to determine whether such activities
can be considered to be of a trade union nature.
517. Convention No. 87 provides no specific guarantee concerning strikes.
The supervisory bodies of the ILO, however, have always taken the view - which is
shared by the Commission - that the right to strike constitutes one of the essential
means that should be available to trade union organisations for, in accordance with
Article 10 of the Convention, furthering and defending the interests of their
members. An absolute prohibition of strikes thus constitutes, in the view of the
Commission, a serious restriction on the right of trade unions to organise their
activities (Article 3 of the Convention) and, moreover, is in conflict with Article 8,
paragraph 2, under which "the law of the land shall not be such as to impair, nor
shall it be so applied as to impair, the guarantees provided for [by the Convention]".
518. As to the printing and the distribution of publications, the Commission
must point out that the right to the free expression of thought is of special
importance as an integral part of the freedom to which trade union organisations
are entitled. As the Committee on Freedom of Association has often stressed,2'the
right to express opinions through the press or otherwise is one of the essential
elements of trade union rights. The prohibition of trade union publications and the
conviction of trade unionists for infringing this prohibition cannot therefore be
anything but a violation of the right of trade unions to organise their activities, as
recognised in Article 3 of Convention No. 87.
519. With regard to the nature of the legal proceedings instituted, the
Commission is bound to observe that it has little information on the way in which
the trials of the trade unionists were conducted. Although certain evidence given
during the hearings alleged the failure to respect certain fundamental rights in the
judicial field such as the right of defence, the Commission cannot, in view of the
small number of concrete cases brought to its attention, conclude that, generally
speaking, the guarantees of normal judicial procedure were systematically disregarded.
520. Another question concerning the detentions which the Commission must
examine is that of the conditions imposed on the detainees and, in particular, the
most serious allegation of all, the ill-treatment said to have been inflicted on them.
The information from the Government available to the Commission on this point
was extremely limited. However, from the many statements made during the
hearings and the substantial documentation submitted to it on this point,-the
Commission is led to believe that the standard minimum rules for the treatment of
'7 See ILO : Freedom of Association - Digest of decisiorc of the Freedom of Association Committee
of the Governing Body of the ILO (Geneva, 2nd edition, 1976), para. 399.
Conclusions and recommendations
refers to the recognition of the guiding role of the PUWP in society as a whole and
not in trade union activity as such. Taking all these factors into account, the
Commission considers that section 3 of the Act cannot be taken to impair the
guarantees laid down in the Convention, provided that, as the wording seems to
indicate, this provision is interpreted as concerning the general constitutional and
political order of the country and not trade union activity itself. The attention of
the Government is therefore called to the importance which the practical
application of this provision will have for the purpose of assessing its conformity
with Convention No. 87.
Right of trade unions to organise their activities - right to strike
552. The Act, in section 36 (1), recognises the right of trade unions to organise
strikes, but fixes a number of conditions for the exercise of this right and prohibits
it in certain sectors of activity.
553. The Commission must examine these provisions to determine whether
they impose restrictions which call in question the right to strike and, consequently,
the right of trade unions to organise their activities (Article 3 of Convention
No. 87) for furthering and defending the interests of their members (Article 10
of the same Convention). It has observed that some of these provisions could constitute
serious restrictions.
554. It is necessary to refer, first, to the conditions for the calling of a strike
laid down by section 38 (1) which requires that the decision shall be approved by
the majority of the workers concerned and not merely by the majorily of those
voting. The Commission considers that a majority of this kind may be difficult to
reach, particularly in large undertakings, and jeopardise the possibility of the
workers concerned to call a strike. Section 38 (1) also requires the prior agreement
of the higher body of the trade union, that is to say, apparently, the fedelation to
which the organisation is affiliated. The commission considers that such a
requirement, laid down by legislation, imposes an undue restriction on the right of
trade unions to organise their activities.
555. Second, the Commission observes that section 40 of the Act establishes a
very long list of essential services in which strikes are prohibited. It feels bound to
refer in this regard to the views expressed by ILO supervisory bodies that the
prohibition of strikes should be confined to essential services in the strict sense,
that is, those whose interruption would endanger the life, personal safety or health
of the whole or part of the population.
556. The Commission must also point out the severity of the penalties laid
dorvn for the organisers of strikes, going as far as imprisonment foione year for
infringement of the provisions on the right to strike (iection4T of the Acl).
557. The Commission considers that the provisions concerning procedures of
negotiation, conciliation and arbitration that must be exhausted befbie a strike can
be called do not require special comment, since the final arbitration award is not of
a binding nature, either party being entitled to declare, before the start of the
procedure, that the award will not bind it (section 35 (5) of the Act).
Right to establish federations and confederations
558. As the Commission has already pointed out,3e trade unions have the right,
under section 20 of the Act, to establish inter-union associations and organisations.
t43
3e See above, para. 547.
Document No. 278
Report of the Commission of Inquiry appointed under
article 26 of the Constitution to examine the observance
by Nicaragua of Conventions Nos 87, 98 and 144,
Official Bulletin, vol. LXXIV, 1991, paras 500–509
'CE
Bibliothèque du BIT, CH-1211 Genève 22 23 OCT 1991
P09604/2
ILO. - OFFICIAL BULLETIN.
%0M I W\JËt 1ETIN
SUPPLEMENT 2
Vol. LXXIV, 1991 Series B
Report of the Commission of Inquiry appointed under article 26
of the Constitution to examine the observance by Nicaragua
of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation
(International Labour Standards) Convention, 1976 (No. 144).
NICARAGUA
provision was to protect members' rights in the event of any
irregularity. It was therefore a question of harmonising this
objective with the provisions of Article 3 of Convention No. 87, which
stipulate that the public authorities shall refrain from any
interference which would restrict the right of trade unions to
organise their administration and activities or impede the lawful
exercise thereof. To this end, the representative of the
Director-General proposed an alternative formula which was considered
acceptable by the authorities and the trade union officials.
498. The Commission has not been informed of any complaints
concerning this matter. Despite the time which has elapsed, the
above-mentioned provision was not amended and ceased to have effect
only during the short period when the Regulation respecting Trade
Union Associations was repealed, from the end of the Sandinista
Government to the beginning of the present Government, which
reintroduced it.
A99. Thus the Commission can only conclude that, except for the
above-mentioned period following the adoption of Act No. 97,
legislation in this respect has not been and is not compatible with
Article 3 of Convention No. 87.
Activities and programmes
500. This section will examine two other matters concerning
Article 3 of Convention No. 87 which have also been pending for some
time before the Committee of Experts, namely, the prohibition of
political activities by trade unions under section 204(b) of the
Labour Code and the right to strike, which is subject to restrictions
under sections 225, 228 and 314 of the Labour Code.
501. The Committee of Experts and the Committee on Freedom of
Association have had to refer on many occasions to pieces of
legislation which establish a broad prohibition of political
activities by trade unions. They have considered that provisions
prohibiting all political activities are incompatible with the
principle of freedom of association^ and furthermore, cannot be
realistically applied in practice. Even during the preparatory work
leading to the adoption of Convention No. 87 it was pointed out, in
defining a workers' organisation as one "for furthering and defending
the interests of workers", that these terms do not restrict the right
of trade unions to participate in political activities or limit trade
union action to simply occupational matters.^
502. The Commission believes that a broadly based prohibition of
political activities by employers' and workers' organisations would be
contrary to Article 3 of the Convention since it would impair the
right of such organisations to organise their activities and develop
their programmes of action. But at the same time such organisations
124 9345n
REPORT OF THE COMMISSION OF INQUIRY (ART. 26 OF THE CONSTITUTION)
should maintain their independence of political parties and in the
development of their political activities.
503. The information available does not show that trade unions
were dissolved as a result of their participation in political
activities, as authorised by section 204(b) of the Labour Code. As
regards other measures adopted by the Government, see paragraphs
433-469. The authorities had stated to the representative of the
Director-General in 1983 that the provision of section 204 could be
suppressed since it was not applied in practice. This was not carried
out until the adoption of Act No. 97 respecting the reform of the
Labour Code but when this Act itself was reformed by Act No. 102 the
previous situation was re-established.
504. Thus, with the exception of this period, legislation
respecting the political activities of trade unions has continued and
continues to be incompatible with the provisions of Article 3 of
Convention No. 87.
505. As regards strikes, it appears from all the information
gathered that there have been very few major strike movements and that
trade unions have had recourse to short work stoppages. In
particular, the organisations opposing the Sandinista Government
pointed out that in any situation of this kind trade unionists and
workers of such organisations were subject to reprisals by the
authorities. For their part the trade union officials of
organisations close to the Government said that even though recourse
had been made to strikes in their sector no reprisals were taken.
However, there was a general consensus, which included the previous
and present authorities of the Ministry of Labour and COSEP, on the
non-application of the regulations concerning strikes and the
established procedure for settling collective disputes. This
procedure was considered so complicated that it was impossible to
apply. From this standpoint, it appears that strikes and work
stoppages would in general lie outside the field of legality even
though they are not declared illegal.
506. The Committee of Experts had noted the provision requiring
a majority of 60 per cent of the workers for the calling of a strike
(section 225 of the Labour Code); the prohibition of strikes in rural
occupations when produce may be damaged if it is not immediately
disposed of (section 228(1)); the provision enabling the authorities
to impose compulsory arbitration to end a strike that has lasted 30
days (section 314). These are restrictions on the right to strike
which go beyond what is accepted by the ILO supervisory bodies and
which infringe the right of trade unions to organise their activities
(Article 3 of the Convention) for the purposes of promoting and
defending the interests of their members (Article 10). Indeed, the
above-mentioned section 225 of the Labour Code does not establish a
simple majority but a qualified majority of the workers for declaring
a strike, which makes action more difficult in this respect; section
228(1) includes in the definition of work in the public interest (in
which strikes are prohibited by section 227) tasks which are not
9345n 125
NICARAGUA
essential services in the strict sense as defined by the supervisory
bodies (and where a prohibition or restriction of strikes would be
acceptable); section 314 makes it possible to impose compulsory
arbitration, equivalent in this case to the prohibition of the strike
once it has lasted more than 30 days.
507. Act No. 97 introduced a simpler method for the settlement
of disputes of a social and economic nature (section 25, under the
chapter respecting collective agreements), which implicitly abrogated
part of the previous procedure by providing that such disputes would
be settled in accordance with this new machinery (section 28). As a
result, section 314, which was included in the previous repealed
procedure, also ceased to have effect. However, under Act No. 97,
sections 225 and 228(1) mentioned above, included in the chapter
respecting strikes, remained in effect.
508. However, under Act No. 102 the amendments to Act No. 97
concerning procedure were eliminated, and the previous legal situation
was re-established. This remains the case at the present.
509. It can therefore be concluded that except for the brief
period of the application of Act No. 97 as regards section 314 of the
Labour Code, the provisions restricting the right to strike which are
incompatible with Convention No. 87 have remained and continue to
remain in force.
Collective bargaining
510. Both in the complaint made under article 26 of the
Constitution and in the pending observations of the Committee of
Experts, reference is made to Decree No. 530 of 1980 as an
infringement of Article 4 of Convention No. 98. This Decree amended
section 22 of the Labour Code and introduced a requirement that
collective agreements must be approved by the Ministry of Labour.
511. The complainants also pointed out that the National Labour
and Wages Organisation System (SNOTS) which established categories of
employment and corresponding rates of remuneration, eliminated wages
from the collective bargaining process, contrary to Convention No.
98. In this connection, the Committee of Experts had taken note with
interest in 1989 that, according to the information provided by the
study mission in 1988, the SNOTS was used only for reference purposes
and that wages could be fixed freely.
512. As regards the practice of collective bargaining, the
Commission can only note the contradiction between the different items
of information received. Thus, for example, C0SEP officials stated
that there had been no negotiations in the private sector whereas,
according to the Minister of Labour, collective bargaining had
occurred in both the public and private sectors. The previous labour
authorities referred to the large number of collective agreements
concluded after the first period following the adoption of Decree
126 9345n
Document No. 279
Trade Union Rights in Belarus, Report of the Commission
of Inquiry appointed under article 26 of the Constitution
to examine the observance by the Government of the
Republic of Belarus of Conventions Nos 87 and 98,
Official Bulletin, vol. LXXXVII, 2004, paras 622–627
B!BLIOTIIEQl E 01' BI T. Cll-1211 GE:\iE\·E 22
Title: Official bulletin.
Component: Official bulletin.
<NIA> Issue:
Routing List: P09604 I COP 5
- -
Vol. LXXXV!l 2004 Series B
SPECIAL SUPPLEMENT
Trade union rights in Belarus
Report of the Commission of Inquiry appointed
under article 26 of the Constitution of the
International Labour Organization to examine
the observance by the Government of the
Republic of Belarus of the Freedom of Association
and Protection of the Right to Organise Convention,
1948 (No. 87) and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98)
CONTENTS
Page
Acronyms ................................................................................................................................... 1x
Part I. Introduction and background to the case .................................................................... .
I. Filing of the complaint and appointment of the Commission ....................................... .
I. Filing of the complaint............................................................................................... I
II. Summary of measures taken by the Governing Bo dy of the !LO.............................. 3
Ill. Appointment of the Commission............................................................................... 3
2. Synopsis of the dialogue and relations between the ILO and Belarus concerning
freedom of association....................................................................................................... 4
I. The first complaints agains t the Government of Belarus
(Cases Nos. 1849 and 1885) ..................................................................................... . 4
Trade union rights in Belarus
cases involving Mr. Yaroshuk and Mr. Odynets, the imposition of administrative detention
was out of line with the penalties ordinarily imposed in such cases.
619. The "offence" which resulted in Mr. Bukhvostov being sentenced to ten days'
administrative detention consisted solely of his unauthorized presence in Oktyabrskaya
Square between 4.05 p.m. and 4.10 p.m. on 30 October 2003 while carrying a poster
bearing the words "We protest against violations of workers' rights" and his failure to
respond to police orders to desist. The presence of a single person at that time and place
could not possibly pose any threat to public health or safety nor, even, to the free flow of
traffic. Indeed, the Commission can find nothing in the court decision to suggest otherwise.
620. So far as concerns Mr. Yaroshuk, officials from the Ministry of Justice and
even the Deputy Prosecutor-General expressed surprise that he was punished by other than
a fine. Moreover, the Commission notes that the argument that he presented to the effect
that he criticized the law enforcement system generally and not the judge who presided
over the proceeding for the deregistration of the BTUATC appears not to have been the
subject of any detailed analysis. So far as concerns Mr. Odynets, it has already been noted
that, normally, only a fine is imposed for the failure of a lawyer to attend court.
621. Whilst the cases against Mr. Bukhvostov, Mr. Yaroshuk and Mr. Odynets are
now part of the past, the Commission considers that they reflect the Government's failure
to protect the rights of trade unionists and, in particular, to protect them from discrimination
on the basis of their trade union membership or activities. Such discrimination is not only
incompatible with, but is also destructive of freedom of association.
D. Legislation affecting trade unions
622. Having addressed Decree No. 2 in the first section of its conclusions, the
Commission will here address the matters raised in respect of Decree No. 24 concerning the
use of foreign gratuitous aid (which replaced Decree No. 8) and the Law on Mass Activities
(which substantially incorporated Decree No. 11).
623. Decree No. 24 retains the previous restrictions placed on the use of foreign
gratuitous aid by organizations, including workers' and employers' organizations, that were
the subject of previous examination by the ILO supervisory bodies in respect of Decree
No. 8. The Commission observes that the Decree still prohibits the use of foreign gratuitous
aid for, among others, carrying out public meetings, rallies, street processions,
demonstrations, pickets, strikes and the running of seminars and other forms of mass
campaigning among the population. Violation of this provision can result in the imposition
of heavy fines, as well as the possible termination of an organization's activities. While the
Government stated that Decree No. 24 was only aimed at rendering the previous situation
transparent and created a simple and rapid procedure for the registration of foreign aid, the
Commission heard from one of the employers' organizations that, to the contrary, the
process was costly and time-consuming.
624. The Commission recalls from the principles elaborated by the ILO supervisory
bodies that the right recognized in Articles 5 and 6 of Convention No. 87 implies the right
to benefit from the relations that may be established with an international workers' or
employers' organization. Legislation which prohibits the acceptance by a national trade
union or employers' organization of financial assistance from an international workers' or
employers' organization, unless approved by the Government, and provides for the banning
of any organization where there is evidence that it has received such assistance, is not in
conformity with this right. Although there were no specific allegations as to the practical
1 3 8 Official Bulletin-Series B-2006-03-O166-1 doc
Report ofthe Commission ofInquiry
application of this Decree, the Commission reiterates the conclusions made by these
supervisory bodies that the previous authorization required for foreign gratuitous aid and
the restricted use for such aid set forth in Decree No. 24 is incompatible with the right of
workers' and employers' organizations to organize their own activities and to benefit from
assistance that might be provided by international workers' and employers' organizations.
625. As regards the Law on Mass Activities, the Commission recalls that this Law
sets out the procedure for requesting previous authorization for any mass activity,
gathering, open-air meeting, street rally, demonstration or picket. A certain number of
restrictions are laid down in the Law, including the prohibition of mass events aimed at
changing the constitutional order by force or propaganda of war, social, national, religious
or race hostility. Further restrictions are set out concerning the proximity of mass events in
respect of certain government buildings and metro stations. When a request for a mass
event has been received, the local executive and administrative body has the power, with
the event organizer's agreement, to change the date, place and time of the event to
safeguard the rights and freedoms of citizens, public safety and the normal functioning of
transport and organizations. Organizations in violation may be dissolved and organizers
may be charged with a violation of the Administrative Code.
626. The Government explained that the Law establishes a procedure for mass
events that is necessary for the protection of the rights of the wider community and to
ensure law and order. While the legislation does permit dissolution, no trade unions have
been liquidated under the Law. The Commission recalls, however, the case of
Mr. Bukhvostov referred to above, who was sentenced to ten days' administrative detention
for having undertaken a picket on his own, which is also punishable under the Law, in an
unauthorized venue. While the Government explained that such action in the absence of
appropriate permission is a breach of the Administrative Code, Mr. Bukhvostov clarified
for the Commission that requests for permission to demonstrate in central public squares
were systematically denied and that the authorities routinely and unilaterally changed the
venue to an obscure and unfrequented location. This was what had happened in October
when he had made a request to protest against violations of workers' and trade union rights
in Belarus. Following his decision to protest on his own in the square for which permission
had been denied, he was immediately arrested, charged and convicted. The decision was
not subject to appeal.
627. Given this information, the Commission endorses the comments of the ILO's
supervisory bodies that several provisions of the Law on Mass Activities constitute a
violation of the right of workers' organizations to organize their activities freely, without
interference by the public authorities, as provided for in Article 3 of Convention No. 87. As
concerns the action taken in respect of Mr. Bukhvostov pursuant to the Law, read in
combination with the Administrative Code, the Commission considers that there was a
serious breach of Mr. Bukhvostov's civil liberties. In this respect, the Commission recalls
the ILC 1970 resolution concerning trade union rights and their relation to civil liberties,
which emphasizes that the rights conferred upon workers' and employers' organizations
must be based on respect for civil liberties, as their absence removes all meaning from the
concept of trade union rights. Among those liberties essential for the normal exercise of
trade union rights are freedom of opinion and expression, freedom of assembly, freedom
from arbitrary arrest and detention and the right to a fair trial by an independent and
impartial tribunal.
Official Bulletin-Series B-2006-03-0166-1.doc 1 39
Document No. 280
Truth, reconciliation and justice in Zimbabwe, Report of
the Commission of Inquiry appointed under article 26 of
the Constitution to examine the observance by the
Government of Zimbabwe of Conventions Nos 87 and 98,
Official Bulletin, vol. XCIII, 2010, paras 572–575
INTERNATIONAL LABOUR OFFICE
OFFICIAL BULLETIN
Vol. XCIII 2010 Series B
SPECIAL SUPPLEMENT
Truth, reconciliation and justice in Zimbabwe
Report of the Commission of Inquiry appointed under article 26 of
the Constitution of the International Labour Organization to
examine the observance by the Government of Zimbabwe of
the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87) and the Right to Organise
and Collective Bargaining Convention, 1949 (No. 98)
Truth, reconciliation and justice in Zimbabwe
569. The Commission takes due note of the Government's declared intention to
reform the law in relation to the basic labour rights of public servants by harmonizing the
Labour Act and the Public Service Act. The Commission is pleased to note the
Government's stated commitment to ensuring that the right to organize is extended to
public servants in the near future. It considers it significant that steps have already been
taken in this regard, taking advantage of technical assistance offered by the ILO during July
2009.
570. Despite this, however, the Commission was unable to obtain firm information
as to the status of legislative amendments to harmonize the labour law. In addition, the
Commission is concerned to note that all workers' and employers' organizations that it met
believed that their opinion had not been sufficiently taken into account. The Commission
notes that, as at 18 December 2009, it has received no information relating to legislative
amendments to the Public Service and Labour Acts, and so it can only assume that the
harmonization process is somewhat delayed.
571. The Commission reiterates that all workers, without distinction whatsoever and
without previous authorization, should enjoy the right to establish and join trade unions of
their own choosing for furthering and defending their occupational and economic interests.
Convention No. 87 guarantees the right to organize to employees in the public service,
including prison officers. The Commission considers that the current legislation in
Zimbabwe is not in full conformity with Article 2 of Convention No. 87 in so far as public
servants are denied their right to organize.
The right to strike
572. The right to strike is recognized by the Zimbabwean Labour Act. The
Commission notes however that many representatives of workers' and employers'
organizations and labour lawyers recognized that the right to strike could not, in practice,
be exercised. It was explained to the Commission that it was very difficult for a strike to be
declared lawful under the Labour Act. The procedure was described as cumbersome and
extraordinarily slow. Further, the Commission was made aware of the excessively wide
definition of "essential services" in Zimbabwean legislation, which meant that a significant
number of workers had no right to strike.
573. The Commission notes that as strikes are usually, if not always, found to be
unlawful in Zimbabwe, striking workers are routinely subject to the sanctions set out in the
Labour Act for illegal strikes - and these sanctions include fines, dismissal and penal
sentences for individuals, and fines and deregistration for trade unions. The Commission
was told that large numbers of workers have been dismissed from their employment on
account of taking industrial action, and that this has had a significant effect on their lives,
and that of their families, in the context of the economic and social crisis in Zimbabwe. It
notes with concern that often members of workers' committees and trade union officials
and members were singled out for dismissal in the aftermath of a strike.
574. The Commission must highlight its particular concern at the information it
received concerning the routine use of the police and army against strikes. In particular, the
Commission was presented with information concerning the shooting of striking workers in
2001, leading to injuries and deaths. The Commission is deeply disturbed by the
information that it received that security forces opened fire on striking workers in the
mining sector in September 2009, less than a month after it left the country.
140 Official Bulletin-Series B-2010-07-0157-1-En.doc
Report of the Commission of Inquiry
575. In light of the above, the Commission is obliged to observe that the right to
strike is not fully guaranteed in law or practice. In particular, the Commission is concerned
that the legislation includes disproportionate sanctions for the exercise of the right to strike
and an excessively large definition of essential services; and that in practice the procedure
for the declaration of strikes is problematic and that it appears that the security forces often
intervene in strikes in Zimbabwe. The Commission wishes to confirm that the right to strike
is an intrinsic corollary of the right to organize protected by Convention No. 87.
Interference
576. The Commission was told of serious interference in ZCTU meetings and
demonstrations, most particularly through the requirement in practice that trade unions seek
the permission of the police to hold such gatherings. The Commission was concerned at the
complaint that members of the secret services were present at all ZCTU meetings, either
overtly or covertly. In this regard, it was not surprised to be told that members of the ZCTU
often did not wish to actively participate in meetings on account of the presence of CIO
operatives.
577. A number of ZCTU officials and members stated that when their homes or
trade union premises had been searched, trade union materials had been confiscated,
without court orders. These materials included posters, flyers, T-shirts and caps.
578. It was also indicated to the Commission that the legislation allowed
interference by the authorities in the financial affairs of trade unions (Labour Act, section
120(2)), and that this power had been used in relation to a financial investigation of the
ZCTU in 2006. The Commission understands that the investigation involved the seizure of
ZCTU financial and administrative documentation and affected its ability to function
normally during that time. The Commission also noted concerns with legislative provisions
concerning the supervision of the elections of trade union officers (Labour Act, section 51);
the regulation of trade union dues (Labour Act, sections 28(2), 54(2) and (3) and 55) and
the disposal of union dues by limitations on the staff that trade unions may employ and the
equipment and property that they may purchase (Labour Act, section 55).
579. The Commission took particular note of the allegation that the Reserve Bank
of Zimbabwe had established a parallel bank account into which funds sent by foreign
donors to the ZCTU were transferred. The Commission was told by the ZCTU that it was
not able to freely access that money, and that a significant amount of money had been held
in this way for one year, until it was released the day after the Commission's first meeting
with the ZCTU during its on-the-spot mission in August 2009.
580. The Commission was deeply concerned at statements that potential
"witnesses" to the Commission had been identified by the CIO before its on-the-spot
mission, and had been threatened that they should not participate in the Commission's
work. The Commission was made aware that, when it was drawn to her attention, the
Minister of Labour and Social Services sent a letter to the Minister of State for National
Security seeking his urgent intervention to prevent the repetition of such actions.
581. The Commission wishes to stress that public authorities should refrain from
any interference which would restrict the right of workers' organizations to organize their
activities and to formulate their programmes, or which would impede the lawful exercise of
this right. The freedom to organize their administration is not limited to strictly financial
operations, but also implies that trade unions should be able to dispose of all their fixed and
movable assets unhindered and that they should enjoy inviolability of their premises,
Official Bulletin-Series B-2010-07-0157-1 -En.doc 141
Document No. 281
Towards Freedom and Dignity in Myanmar, Report of the
Commission of Inquiry established in accordance with
article 26 of the ILO Constitution concerning the
non-observance by Myanmar of Conventions Nos 87 and
29, 4 August 2023, paras 585–586
Towards Freedom and Dignity in Myanmar
Report of the Commission of Inquiry established in accordance with
article 26 of the ILO Constitution concerning the non-observance
by Myanmar of the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), and the Forced
Labour Convention, 1930 (No. 29)
4 August 2023
Towards Freedom and Dignity in Myanmar 179
safety of trade unionists, but also on their ability to engage in trade union activities, thus
making these matters of direct union interest. Accordingly, while emphasizing that the
main objective of trade unions is to defend and advance the economic and social
interests of their members, the Commission concludes that making public statements
in support of the opposition, calling for the transition to a democratic society and
criticizing measures taken by the military authorities, as well as expressing support for
workers and their labour rights, fall within the scope of legitimate trade union activities
protected by Convention No. 87, especially within the current context in Myanmar
where, as a result of the measures taken by the military authorities since the February
2021 military coup, trade unions across the country and at all levels are unable to
function.
584. The Commission has further observed a number of obstacles to trade union activities in
the private sector, as well as a lack of access to rapid and independent remedies in this
regard. In particular, numerous witnesses have reported difficulties in collecting union
dues, indicating that unions are often accused of collecting funds for the Peoples’
Defence Forces (PDFs). The Commission has also observed a common practice of
establishing yellow unions so as to show that factories support trade unions and to
prevent the emergence of genuine worker representation. Workers are then obliged to
join and pay union dues. Further issues noted by the Commission concern the
preference of management to deal with workplace coordination committees instead of
existing trade unions, as well as the formation of such committees without consulting
the workers, or even appointing worker representatives, all of which result in a lack of
genuine worker representation in workplace coordination committees and undermine
the role of trade unions. The Commission finds it important to clarify that, while such
employer interference in the internal affairs of trade unions is a matter covered by
Convention No. 98, which has not been ratified by Myanmar and is outside the
Commission’s mandate, actions and omissions by the military authorities play a decisive
role in this regard, for which reason the Commission is raising these issues under
Convention No. 87. In particular, it considers that the measures taken by the military
authorities since the coup have not only condoned, in the public eye, such behaviour by
employers, but have also enabled restrictions on the right of trade unions to freely
organize their administration, activities and programmes, thus weakening their already
fragile situation in the country. Even though the military authorities claimed that
workplace coordinating conciliation bodies were functioning, the Commission found
that there was, in practice, a lack of access to effective remedies which could address
and solve such workplace issues, and particularly independent and impartial courts,
labour inspection and other dispute settlement mechanisms. This further highlights the
practical obstacles to trade union activities.
585. Furthermore, the Commission has observed limitations on the right to strike. In the first
place, the military authorities have prohibited public assemblies of more than five
people, thus imposing restrictions on demonstrations and workers’ strikes in public
areas. In private workplaces, including in the garment sector, workers have been
discouraged from taking collective action to raise labour rights violations, as managers
have kept lists of strike participants and threatened to call in the police or the military.
In other instances, workers who have complained to the labour authorities about
workplace violations have been threatened with being arrested if they organize
protests. In several cases reported to the Commission, the military or the police have
intervened to break up workplace strikes that posed no threat to the public order, and
strike organizers and participants were beaten or arrested. In one recent incident
brought to the Commission’s attention, trade unionists and labour activists who
Towards Freedom and Dignity in Myanmar 180
organized a strike in a garment factory were arrested and charged with incitement
under section 505(a) of the Penal Code (a newly introduced provision on crimes against
defence services or government employees), despite not having made any political
demands and only attempting to negotiate higher wages. The Commission has also
noted that much of the interference by the military authorities in strikes, labour disputes
and trade union activities has occurred in industrial zones covered by martial law, where
there is a complete lack of guarantees of due process. Such interference has also been
enabled and facilitated by the declaration of a state of emergency and the introduction
of new crimes allowing the arrest of workers without arrest warrants, as elaborated
above. On the basis of the information provided, the Commission concludes that the
threats and repercussions of engaging in workplace strikes and protests have, in
practice, discouraged workers from taking collective action.
586. In this respect, the Commission is bound to point out that any intervention by the
security forces in situations of strikes by workers should be strictly limited to ensuring
public order. The use of the security forces for other purposes, and in particular to
disperse a peaceful workplace strike, constitutes interference in trade union affairs.
Furthermore, it must be emphasized that in no case should penal sanctions be imposed
simply for having organized or participated in a peaceful strike. Based on the evidence
received, the Commission concludes that the right to strike, as an essential means for
workers to defend their interests, has been severely limited since the coup, both as a
result of military orders restricting assemblies of more than five persons in public spaces
and because of the significant risks and repercussions faced by strike participants,
contrary to Article 3 of Convention No. 87.
587. Finally, the Commission considers that, in addition to the above issues, the right of
workers’ organizations to freely organize their administration, activities and
programmes is further inhibited by the climate of violence and intimidation of trade
union leaders and members, resulting from their persistent stigmatization and
prosecution. It is evident that trade unions whose members and leaders are in hiding or
in detention, who are threatened, intimidated, monitored and have access to only
limited channels of communication, as well as those workers’ organizations with offices
that have been raided and sealed off, cannot freely engage in trade union activities in
defence of their members’ interests.
Article 4 – Dissolution and suspension of organizations
588. The Commission has already addressed above the requests made by the military
authorities to unions to return their registration certificates (“form 7”) in relation to
Article 2 of the Convention (see above, paragraphs 573-577). However, this practice also
raises issues under Article 4 of the Convention, as the cancellation of registration, in the
present circumstances, implies serious consequences with an effect tantamount to
administrative dissolution or suspension.
589. Furthermore, the Commission notes that the military authorities have declared 16 trade
unions and civil society organizations as not being registered legally in accordance with
the Labour Organization Law (LOL) (see above, paragraph 434). While the military
authorities have claimed in communications to the ILO supervisory mechanisms and in
the national media, that this does not amount to having declared these organization
“illegal”, several of their own public pronouncements do refer to them in such terms.
Irrespective of whether or not these organizations have been declared illegal, the
announcement declaring them not registered in accordance with the LOL, especially in
view of the actions taken or threatened against them in this connection, have in practice
Document No. 282
ILO, Compilation of decisions of the Committee on
Freedom of Association, Sixth edition, 2018, pp. 143–182
Freedom
of association
Sixth edition, 2018
Compilation of decisions
of the Committee on Freedom
of Association
143
Right to strike
Importance of the right to strike and its legitimate exercise
751. While the Committee has always regarded the right to strike as constituting a
fundamental right of workers and of their organizations, it has regarded it as such
only in so far as it is utilized as a means of defending their economic interests.
(See the 2006 Digest, para. 520.)
752. The Committee has always recognized the right to strike by workers and their
organizations as a legitimate means of defending their economic and social interests.
(See the 2006 Digest, para. 521; 346th Report, Case No. 2528, para. 1446; 349th Report,
Case No. 2552, para. 419; 351st Report, Case No. 2566, para. 980; 353rd Report, Case No. 2589,
para. 126; 355th Report, Case No. 2602, para. 662; 356th Report, Case No. 2696, para. 306;
358th Report, Case No. 2737, para. 636; 360th Report, Case No. 2803, para. 340; 362nd
Report, Case No. 2741, para. 767, Case No. 2841, para. 1036; 363rd Report, Case No. 2704,
para. 399, Case No. 2602, para. 465; 365th Report, Case No. 2829, para. 577; 367th Report,
Case No. 2938, para. 227; 370th Report, Case No. 2994, para. 735; 374th Report,
Case No. 3057, para. 213; and 376th Report, Case No. 2994, para. 1002.)
753. The right to strike is one of the essential means through which workers and
their organizations may promote and defend their economic and social interests.
(See the 2006 Digest, para. 522; 342nd Report, Case No. 2323, para. 695, Case No. 2365,
para. 1048; 344th Report, Case No. 2496, para. 407, Case No. 2471, para. 891; 346th Report,
Case No. 1865, para. 780, Case No. 2473, para. 1532; 349th Report, Case No. 2548,
para. 538; 350th Report, Case No. 2602, para. 681; 351st Report, Case No. 2581, para. 1329;
354th Report, Case No. 2581, para. 1103; 356th Report, Case No. 2696, para. 306;
357th Report, Case No. 2713, para. 1101; 360th Report, Case No. 2803, para. 340; 362nd
Report, Case No. 2723, para. 842; 365th Report, Case No. 2723, para. 778; 372nd Report,
Case No. 3022, para. 614; and 377th Report, Case No. 3107, para. 240.)
754. The right to strike is an intrinsic corollary to the right to organize protected by
Convention No. 87.
(See the 2006 Digest, para. 523; 344th Report, Case No. 2471, para. 891; 346th Report,
Case No. 2506, para. 1076, Case No. 2473, para. 1532; 349th Report, Case No. 2552, para. 419;
354th Report, Case No. 2581, para. 1114; and 362nd Report, Case No. 2838, para. 1077.)
10
Freedom of Association – Sixth edition (2018)
144
755. Strikes are by nature disruptive and costly; strike action also calls for a significant
sacrifice from those workers who choose to exercise it as a last resort tool
and means of pressure on the employer to redress any perceived injustices.
(365th Report, Case No. 2829, para. 577.)
756. It does not appear that making the right to call a strike the sole preserve of trade
union organizations is incompatible with the standards of Convention No. 87. Workers,
and especially their leaders in undertakings, should however be protected against any
discrimination which might be exercised because of a strike and they should be able
to form trade unions without being exposed to anti-union discrimination.
(See the 2006 Digest, para. 524.)
757. The prohibition on the calling of strikes by federations and confederations is
not compatible with Convention No. 87.
(See the 2006 Digest, para. 525.)
Objective of the strike (strikes on economic
and social issues, political strikes, solidarity strikes, etc.)
758. The occupational and economic interests which workers defend through the
exercise of the right to strike do not only concern better working conditions or collective
claims of an occupational nature, but also the seeking of solutions to economic
and social policy questions and problems facing the undertaking which are of
direct concern to the workers.
(See the 2006 Digest, para. 526; 344th Report, Case No. 2496, para. 407; 353rd Report,
Case No. 2619, para. 573; 355th Report, Case No. 2602, para. 668; 357th Report,
Case No. 2698, para. 224; 371st Report, Case No. 2963, para. 236, Case No. 2988, para. 852;
and 378th Report, Case No. 3111, para. 712.)
759. Organizations responsible for defending workers’ socio-economic and occupational
interests should be able to use strike action to support their position in the
search for solutions to problems posed by major social and economic policy trends
which have a direct impact on their members and on workers in general, in particular
as regards employment, social protection and standards of living.
(See the 2006 Digest, para. 527; 340th Report, Case No. 2413, para. 901; 342nd Report,
Case No. 2323, para. 685; 343rd Report, Case No. 2432, para. 1025; 344th Report,
Case No. 2496, para. 413; 346th Report, Case No. 2506, para. 1076; 355th Report,
Case No. 2602, para. 668; 362nd Report, Case No. 2838, para. 1077; 371st Report,
Case No. 2988, para. 852; and 378th Report, Case No. 3111, para. 712.)
760. Strikes of a purely political nature and strikes decided systematically long
before negotiations take place do not fall within the scope of the principles of
freedom of association.
(See the 2006 Digest, para. 528; 340th Report, Case No. 2413, para. 901; 344th Report,
Case No. 2509, para. 1245; and 353rd Report, Case No. 2619, para. 573.)
145
10. Right to strike
761. Strikes of a purely political nature do not fall within the protection of Conventions
Nos. 87 and 98.
(See 346th Report, Case No. 1865, para. 749; and 353rd Report, Case No. 1865, para. 705.)
762. If a national civic work stoppage is exclusively political and insurrectional, the
Committee would not have competence in the issue.
(See 334th Report, Case No. 2254, paragraph 1082).
763. While purely political strikes do not fall within the scope of the principles
of freedom of association, trade unions should be able to have recourse to protest
strikes, in particular where aimed at criticizing a government’s economic and
social policies.
(See the 2006 Digest, para. 529; 344th Report, Case No. 2509, para. 1247; 348th Report,
Case No. 2530, para. 1190; 351st Report, Case No. 2616, para. 1012; 353rd Report,
Case No. 2619, para. 573; 355th Report, Case No. 2602, para. 668; 360th Report,
Case No. 2747, para. 841; and 372nd Report, Case No. 3011, para. 646.)
764. There is a distinction between a strike and a lockout, but this case refers to a
“peaceful demonstration” and a “suspension of services”, which do not come within
the scope of employer–worker relations, but rather that of a protest and suspension
of activities by the employer. Under these circumstances, employers, like workers,
should be able to have recourse to protest strikes (or action) against a government’s
economic and social policies, which can be restricted only in the case of essential
services or public services of fundamental importance, in which a minimum service
could be established.
(See 348th Report, Case No. 2530, para. 1190.)
765. In one case where a general strike against an ordinance concerning conciliation
and arbitration was certainly one against the government’s policy, the Committee
considered that it seemed doubtful whether allegations relating to it could
be dismissed at the outset on the ground that it was not in furtherance of a trade
dispute, since the trade unions were in dispute with the government in its capacity
as an important employer following the initiation of a measure dealing with industrial
relations which, in the view of the trade unions, restricted the exercise of trade
union rights.
(See the 2006 Digest, para. 530.)
766. The right to strike should not be limited solely to industrial disputes that are
likely to be resolved through the signing of a collective agreement; workers and their
organizations should be able to express in a broader context, if necessary, their dissatisfaction
as regards economic and social matters affecting their members’ interests.
(See the 2006 Digest, para. 531; 344th Report, Case No. 2486, para. 1208, Case No. 2509,
para. 1245; 346th Report, Case No. 2473, para. 1543; 355th Report, Case No. 2602,
para. 668; 362nd Report, Case No. 2814, para. 443; 363rd Report, Case No. 1865,
para. 118; 367th Report, Case No. 2814, para. 354; 372nd Report, Case No. 3011, para. 648;
374th Report, Case No. 3050, para. 468; and 376th Report, Case No. 3011, para. 151.)
Freedom of Association – Sixth edition (2018)
146
767. The solution to a legal conflict as a result of a difference in interpretation of a
legal text should be left to the competent courts. The prohibition of strikes in such a
situation does not constitute a breach of freedom of association.
(See the 2006 Digest, para. 532; 367th Report, Case No. 2907, para. 897; and 373rd Report,
Case No. 3005, para. 192.)
768. If strikes are prohibited while a collective agreement is in force, this restriction
must be compensated for by the right to have recourse to impartial and rapid mechanisms,
within which individual or collective complaints about the interpretation or
application of collective agreements can be examined; this type of mechanism not
only allows the inevitable difficulties which may occur regarding the interpretation
or application of collective agreements to be resolved while the agreements are in
force, but also has the advantage of preparing the ground for future rounds of negotiations,
given that it allows problems which have arisen during the period of validity
of the collective agreement in question to be identified.
(See the 2006 Digest, para. 533; 344th Report, Case No. 2509, para. 1245; 364th Report,
Case No. 2907, para. 673; and 367th Report, Case No. 2907, para. 898.)
769. A strike aimed at an increase in wages and payment of wage arrears clearly
falls within the scope of legitimate trade union activities.
(See 342nd Report, Case No. 2323, para. 691.)
770. A general prohibition of sympathy strikes could lead to abuse and workers
should be able to take such action provided the initial strike they are supporting is
itself lawful.
(See the 2006 Digest, para. 534; 346th Report, Case No. 2473, para. 1543; and 357th Report,
Case No. 2698, para. 220.)
771. By excluding sympathy strikes, secondary boycotts and industrial action in
support of multiple-enterprise agreements from the scope of protected industrial
action, legal provisions could adversely affect the right of organizations to seek and
negotiate multi-employer agreements, as well as unduly restrict the right to strike.
(See 357th Report, Case No. 2698, para. 220.)
772. The fact that a strike is called for recognition of a union is a legitimate interest
which may be defended by workers and their organizations.
(See the 2006 Digest, para. 535; 346th Report, Case No. 2473, para. 1537; 350th Report,
Case No. 2602, para. 681; 355th Report, Case No. 2602, para. 662; and 363rd Report,
Case No. 1865, para. 118.)
773. A ban on strikes related to recognition disputes (for collective bargaining) is
not in conformity with the principles of freedom of association.
(See the 2006 Digest, para. 536.)
774. A claim for recognition for collective bargaining purposes addressed to the
subcontracting company does not render a strike illegal.
(See 350th Report, Case No. 2602, para. 681.)
147
10. Right to strike
775. Protest strikes in a situation where workers have for many months not been
paid their salaries by the Government are legitimate trade union activities.
(See the 2006 Digest, para. 537; and 353rd Report, Case No. 2619, para. 573.)
776. A ban on strike action not linked to a collective dispute to which the employee
or union is a party is contrary to the principles of freedom of association.
(See the 2006 Digest, para. 538; 344th Report, Case No. 2496, para. 408; 346th Report,
Case No. 2473, para. 1543; 350th Report, Case No. 2602, para. 681; 371st Report,
Case No. 2988, para. 852; and 372nd Report, Case No. 3011, para. 648.)
777. Provisions which prohibit strikes if they are concerned with the issue of whether
a collective employment contract will bind more than one employer are contrary to
the principles of freedom of association on the right to strike; workers and their
organizations should be able to call for industrial action in support of multi-employer
contracts.
(See the 2006 Digest, para. 539.)
778. Workers and their organizations should be able to call for industrial action
(strikes) in support of multi-employer contracts (collective agreements).
(See the 2006 Digest, para. 540; and 357th Report, Case No. 2698, para. 220.)
779. The Committee has stated on many occasions that strikes at the national level
are legitimate in so far as they have economic and social objectives and not purely
political ones; the prohibition of strikes could only be acceptable in the case of civil
servants acting on behalf of the public authorities or of workers in essential services
in the strict sense of the term, i.e. services whose interruption could endanger the life,
personal safety or health of the whole or part of the population.
(See the 2006 Digest, para. 541.)
780. A declaration of the illegality of a national strike protesting against the social
and labour consequences of the government’s economic policy and the banning of
the strike constitute a serious violation of freedom of association.
(See the 2006 Digest, para. 542.)
781. As regards a general strike, the Committee has considered that strike action
is one of the means of action which should be available to workers’ organizations.
A 24-hour general strike seeking an increase in the minimum wage, respect of
collective agreements in force and a change in economic policy (to decrease prices
and unemployment) is legitimate and within the normal field of activity of trade
union organizations.
(See the 2006 Digest, para. 543.)
782. A general protest strike demanding that an end be brought to the hundreds of
murders of trade union leaders and unionists during the past few years is a legitimate
trade union activity and its prohibition therefore constitutes a serious violation of
freedom of association.
(See the 2006 Digest, para. 544.)
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148
Types of strike action
783. Generally, a strike is a temporary work stoppage (or slowdown) wilfully effected
by one or more groups of workers with a view to enforcing or resisting demands or
expressing grievances, or supporting other workers in their demands or grievances.
(See 358th Report, Case No. 2716, para. 862.)
784. Regarding various types of strike action denied to workers (wild-cat strikes,
tools-down, go-slow, working to rule and sit-down strikes), the Committee considers
that these restrictions may be justified only if the strike ceases to be peaceful.
(See the 2006 Digest, para. 545; 348th Report, Case No. 2519, para. 1143; and 362nd Report,
Case No. 2815, para. 1370.)
785. The Committee has considered that the occupation of plantations by workers
and by other persons, particularly when acts of violence are committed, is contrary
to Article 8 of Convention No. 87. It therefore requested the Government, in future,
to enforce the evacuation orders pronounced by the judicial authorities whenever
criminal acts are committed on plantations or at places of work in connection with
industrial disputes.
(See the 2006 Digest, para. 546.)
786. In a case where the justice system qualified the act of reporting to work with
shaved heads or cropped hair styles as a strike action and a violation of the grooming
standards of the hotel, the Committee, while taking into account the concerns expressed
by the hotel management with regard to its image, considered that equating
the mere expression of discontent, peacefully and lawfully exercised, with a strike per
se resulted in a violation of the freedom of association and expression.
(See 358th Report, Case No. 2716, para. 862.)
Employer side during the strike
787. In the framework of a collective labour dispute, it is neither realistic nor necessary
to always deal on the employer side with the entity bearing the ultimate financial
or economic responsibility or with the highest employer representative, be it
in the public sector (for example, the competent minister) or in the private sector (for
example, the parent company).
(See 378th Report, Case No. 3111, para. 708.)
788. In view of the obligation of both the employer and the trade union to negotiate
in good faith and make every effort to reach an agreement as well as the importance
of the right to strike as one of the essential means for workers and their organizations
to defend their economic and social interests, it should be ensured that the party to a
collective labour dispute on the employer side has the authority to make concessions
and take decisions concerning wages and terms and conditions of employment, so
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10. Right to strike
that the pressure brought to bear during the various stages of a collective labour
dispute is effectively directed to an appropriate entity.
(See 378th Report, Case No. 3111, para. 708.)
Prerequisites
789. The conditions that have to be fulfilled under the law in order to render a strike
lawful should be reasonable and in any event not such as to place a substantial limitation
on the means of action open to trade union organizations.
(See the 2006 Digest, para. 547; 343rd Report, Case No. 2432, para. 1026; 346th Report,
Case No. 2488, para. 1331; 357th Report, Case No. 2698, para. 225; 359th Report,
Case No. 2203, para. 524; 371st Report, Case No. 2988, para. 850; and 375th Report,
Case No. 2871, para. 231.)
790. The legal procedures for declaring a strike should not be so complicated as to
make it practically impossible to declare a legal strike.
(See the 2006 Digest, para. 548; 359th Report, Case No. 2203, para. 524.)
791. Economic consideration should not be invoked as a justification for restrictions
on the right to strike.
(See 362nd Report, Case No. 2841, para. 1041; 367th Report, Case No. 2894, para. 339.)
792. According to the Voluntary Conciliation and Arbitration Recommendation,
1951 (No. 92), voluntary conciliation machinery, appropriate to national conditions,
should be made available to assist in the prevention and settlement of industrial disputes
between employers and workers. Provision should be made to enable the procedure
to be set in motion, either on the initiative of any of the parties to the dispute
or ex officio by the voluntary conciliation authority.
(See 298th Report, Case No. 1612, para. 22.)
793. Legislation which provides for voluntary conciliation and arbitration in industrial
disputes before a strike may be called cannot be regarded as an infringement of
freedom of association, provided recourse to arbitration is not compulsory and does
not, in practice, prevent the calling of the strike.
(See the 2006 Digest, para. 549; 359th Report, Case No. 2725, para. 261, Case No. 2776,
para. 288; and 371st Report, Case No. 2988, para. 853.)
794. In general, a decision to suspend a strike for a reasonable period so as to allow
the parties to seek a negotiated solution through mediation or conciliation efforts,
does not in itself constitute a violation of the principles of freedom of association.
(See the 2006 Digest, para. 550; 359th Report, Case No. 2725, para. 261, Case No. 2776,
para. 288; and 371st Report, Case No. 2987, para. 167.)
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150
795. Conciliation and mediation machinery should have the sole purpose of facilitating
bargaining and should not be so complex or slow that a lawful strike becomes
impossible in practice or loses its effectiveness.
(See 375th Report, Case No. 2794, para. 387.)
796. In cases of mandatory conciliation, it is desirable to entrust the decision of
opening the conciliation procedure in collective disputes to a body which is independent
of the parties to the dispute.
(See 336th Report, Case No. 2369, para. 212; 338th Report, Case No. 2377, para. 403; 342nd
Report, Case No. 2420, para. 221; and 344th Report, Case No. 2458, para. 302.)
797. In cases of mandatory conciliation, it is necessary to entrust the decision of
opening the conciliation procedure in collective disputes to a body which is independent
of the parties to the dispute.
(See 349th Report, Case No. 2535, para. 351; and 368th Report, Case No. 2942, para. 188.)
798. The Committee has emphasized that, although a strike may be temporarily
restricted by law until all procedures available for negotiation, conciliation and arbitration
have been exhausted, such a restriction should be accompanied by adequate,
impartial and speedy conciliation and arbitration proceedings in which the parties
concerned can take part at every stage.
(See the 2006 Digest, para. 551; 340th Report, Case No. 2439, para. 363; and 364th Report,
Case No. 2827, para. 1123.)
799. The obligation to give prior notice to the employer before calling a strike may
be considered acceptable, as long as the notice is reasonable.
(See the 2006 Digest, para. 552; 340th Report, Case No. 2415, para. 1257; 344th Report,
Case No. 2509, para. 1246; 346th Report, Case No. 2473, para. 1542; and 376th Report,
Case No. 2994, para. 1002.)
800. Prior notice of 48 hours is reasonable.
(See 344th Report, Case No. 2509, para. 1246.)
801. The requirement that a 20-day period of notice be given in services of social or
public interest does not undermine the principles of freedom of association.
(See the 2006 Digest, para. 553.)
802. The legal requirement of a cooling-off period of 40 days before a strike is declared
in an essential service, in so far as it is designed to provide the parties with a
period of reflection, is not contrary to the principles of freedom of association. This
clause which defers action may enable both parties to come once again to the bargaining
table and possibly to reach an agreement without having recourse to a strike.
(See the 2006 Digest, para. 554.)
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10. Right to strike
803. The information asked for in a strike notice should be reasonable, or interpreted
in a reasonable manner, and any resulting injunctions should not be used in
such a manner as to render legitimate trade union activity nearly impossible.
(See 346th Report, Case No. 2473, para. 1542.)
804. The right of the Ministry of Civil Service Affairs and Housing to determine
the time and the place of the strike could further excessively hinder the exercise of
the right to strike.
(See 371st Report, Case No. 2988, para. 850.)
805. With regard to the majority vote required by one law for the calling of a legal
strike (two-thirds of the total number of members of the union or branch concerned),
non-compliance with which might entail a penalty by the administrative authorities,
including the dissolution of the union, the Committee recalled the conclusions of the
Committee of Experts on the Application of Conventions and Recommendations
that such legal provisions constitute an intervention by the public authorities in the
activities of trade unions which is of such a nature as to restrict the rights of these
organizations, contrary to Article 3 of the Convention.
(See the 2006 Digest, para. 555.)
806. The requirement of a decision by over half of all the workers involved in order
to declare a strike is excessive and could excessively hinder the possibility of carrying
out a strike, particularly in large enterprises.
(See the 2006 Digest, para. para. 556; 357th Report, Case No. 2698, para. 225; and 371st
Report, Case No. 2988, para. 850.)
807. The requirement that an absolute majority of workers should be obtained for
the calling of a strike may be difficult, especially in the case of unions which group
together a large number of members. A provision requiring an absolute majority
may, therefore, involve the risk of seriously limiting the right to strike.
(See the 2006 Digest, para. 557.)
808. The Committee requested a government to take measures to amend the legal requirement
that a decision to call a strike be adopted by more than half of the workers
to which it applies, in particular in enterprises with a large union membership.
(See the 2006 Digest, para. 558.)
809. The obligation to observe a certain quorum and to take strike decisions by
secret ballot may be considered acceptable.
(See the 2006 Digest, para. 559.)
810. The observance of a quorum of two-thirds of the members may be difficult to
reach, in particular where trade unions have large numbers of members covering a
large area.
(See the 2006 Digest, para. 560.)
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811. The Committee considered that the condition requiring the agreement of the
majority of member organizations for calling a strike in federations and confederations
and a vote in favour of the strike by the absolute majority of the workers of the
undertaking in the other cases may constitute a serious limitation on the potential
activities of trade unions.
(See 214th Report, Case No. 1081, para. 266.)
812. The Committee has considered to be in conformity with the principles of
freedom of association a situation where the decision to call a strike in the local
branches of a trade union organization may be taken by the general assembly of the
local branches, when the reason for the strike is of a local nature and where, in the
higher-level trade union organizations, the decision to call a strike may be taken by
the executive committee of these organizations by an absolute majority of all the
members of the committee.
(See the 2006 Digest, para. 562.)
813. In a case in which the national legislation provided that a majority trade union
organization and an absolute majority of the workforce in an enterprise may call a
strike and end a strike that is under way, as well as request the appointment of an arbitration
tribunal, the Committee considered that in the specific circumstances the majority
vote in favour of putting an end to strike action and regulating the appointment
of an arbitration tribunal was not contrary to the principles of freedom of association.
(See 380th Report, Case No. 3097, para. 324).
814. The obligation to hold a second strike vote if a strike has not taken place
within three months of the first vote does not constitute an infringement of freedom
of association.
(See the 2006 Digest, para. 563.)
Limitation of the duration of a strike
815. The Committee has expressed its concern at the imposition of a limit on the
duration of a strike which, due to its nature as a last resort for the defence of workers’
interests, cannot be predetermined.
(See 376th Report, Case No. 2994, para. 1002.)
Recourse to compulsory arbitration
816. Compulsory arbitration to end a collective labour dispute and a strike is acceptable
if it is at the request of both parties involved in a dispute, or if the strike
in question may be restricted, even banned, i.e. in the case of disputes in the public
service involving public servants exercising authority in the name of the State or
in essential services in the strict sense of the term, namely those services whose
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10. Right to strike
interruption would endanger the life, personal safety or health of the whole or part
of the population.
(See the 2006 Digest, para. 564; 344th Report, Case No. 2484, para. 1093; 346th Report,
Case No. 1865, para. 757, Case No. 2488, para. 1331; 349th Report, Case No. 2545,
para. 1149; 353rd Report, Case No. 1865, para. 713; 367th Report, Case No. 2894, para. 340;
370th Report, Case No. 2983, para. 284; 371st Report, Case No. 2988, para. 853; 372nd
Report, Case No. 3038, para. 468; 374th Report, Case No. 3084, para. 871; 377th Report,
Case No. 3107, para. 241; and 378th Report, Case No. 3147, para. 570.)
817. Compulsory arbitration is acceptable in cases of acute national crisis.
(See 374th Report, Case No. 3084, para. 871).
818. In as far as compulsory arbitration prevents strike action, it is contrary to the
right of trade unions to organize freely their activities and could only be justified in
the public service or in essential services in the strict sense of the term.
(See the 2006 Digest, para. 565; and 371st Report, Case No. 2988, para. 853.)
819. It is difficult to reconcile arbitration imposed by the authorities at their own initiative
with the right to strike and the principle of the voluntary nature of negotiation.
(See 344th Report, Case No. 2484, para. 1093; 349th Report, Case No. 2545, para. 1149; and
378th Report, Case No. 3147, para. 570.)
820. A provision which permits either party unilaterally to request the intervention
of the labour authority to resolve a dispute may effectively undermine the right of
workers to call a strike and does not promote voluntary collective bargaining.
(See the 2006 Digest, para. 566.)
821. The right to strike would be affected if a legal provision were to permit employers
to submit in every case for compulsory arbitral decision disputes resulting
from the failure to reach agreement during collective bargaining, thereby preventing
recourse to strike action.
(See the 2006 Digest, para. 567.)
822. The Committee considers that a system of compulsory arbitration through the
labour authorities, if a dispute is not settled by other means, can result in a considerable
restriction of the right of workers’ organizations to organize their activities
and may even involve an absolute prohibition of strikes, contrary to the principles of
freedom of association.
(See the 2006 Digest, para. para. 568; 346th Report, Case No. 1865, para. 757; 353rd Report,
Case No. 1865, para. 713; 367th Report, Case No. 2894, para. 340; 370th Report,
Case No. 2983, para. 284; and 377th Report, Case No. 3107, para. 241.)
823. In order to gain and retain the parties’ confidence, any arbitration system
should be truly independent and the outcomes of arbitration should not be predetermined
by legislative criteria.
(See the 2006 Digest, paras. 569 and 995.)
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154
Cases in which strikes may be restricted or even prohibited,
and compensatory guarantees
A. Acute national emergency
824. A general prohibition of strikes can only be justified in the event of an acute
national emergency and for a limited period of time.
(See the 2006 Digest, para. 570; 343rd Report, Case No. 2426, para. 284; and 371st Report,
Case No. 3001, para. 211.)
825. Responsibility for suspending a strike on the grounds of national security or
public health should not lie with the Government, but with an independent body
which has the confidence of all parties concerned.
(See the 2006 Digest, para. 571; 346th Report, Case No. 1865, para. 757, Case No. 2506,
para. 1079; 353rd Report, Case No. 1865, para. 713; and 362nd Report, Case No. 2838,
para. 1078.)
B. Public service
826. Recognition of the principle of freedom of association in the case of public
servants does not necessarily imply the right to strike.
(See the 2006 Digest, para. 572.)
827. The Committee has acknowledged that the right to strike can be restricted or
even prohibited in the public service or in essential services in so far as a strike there
could cause serious hardship to the national community and provided that the limitations
are accompanied by certain compensatory guarantees.
(See the 2006 Digest, para. 573; and 374th Report, Cases Nos. 2941 and 3026, para. 662.)
828. The right to strike may be restricted or prohibited only for public servants
exercising authority in the name of the State.
(See the 2006 Digest, para. 574; 344th Report, Case No. 2365, para. 1446; and 372nd Report,
Case No. 3025, para. 152.)
829. Too broad a definition of the concept of public servant is likely to result in a
very wide restriction or even a prohibition of the right to strike for these workers.
The prohibition of the right to strike in the public service should be limited to public
servants exercising authority in the name of the State.
(See the 2006 Digest, para. 575; 344th Report, Case No. 2365, para. 1446; and 378th Report,
Case No. 3111, para. 715.)
830. The right to strike may be restricted or prohibited: (1) in the public service only
for public servants exercising authority in the name of the State; or (2) in essential
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10. Right to strike
services in the strict sense of the term (that is, services the interruption of which would
endanger the life, personal safety or health of the whole or part of the population).
(See the 2006 Digest, para. 576; 340th Report, Case No. 1865, para. 751; 344th Report,
Case No. 2467, para. 578; 346th Report, Case No. 2500, para. 324; 348th Report,
Case No. 2433, para. 48, Case No. 2519, para. 1141; 349th Report, Case No. 2552,
para. 421; 351st Report, Case No. 2355, para. 361, Case No. 2581, para. 1336; 353rd Report,
Case No. 2631, para. 1357; 354th Report, Case No. 2649, para. 395; 356th Report,
Case No. 2654, para. 370; 357th Report, Case No. 2698, para. 224; 362nd Report,
Case No. 2741, para. 767, Case No. 2723, para. 842; 365th Report, Case No. 2723, para. 778;
367th Report, Case No. 2894, para. 335, Case No. 2885, para. 384, Case No. 2929,
para. 637, Case No. 2860, para. 1182; 370th Report, Case No. 2956, para. 142; 371st Report,
Case No. 3001, para. 211, Case No. 2988, para. 851; 372nd Report, Case No. 3022, para. 614;
374th Report, Case No. 3057, para. 213; 377th Report, Case No. 3107, para. 240; and
378th Report, Case No. 3111, para. 715.)
831. Public servants in state-owned commercial or industrial enterprises should
have the right to negotiate collective agreements, enjoy suitable protection against
acts of anti-union discrimination and enjoy the right to strike, provided that the
interruption of services does not endanger the life, personal safety or health of the
whole or part of the population.
(See the 2006 Digest, para. 577; 340th Report, Case No. 2415, para. 1254; 348th Report,
Case No. 2519, para. 1144; 350th Report, Case No. 2543, para. 728; 358th Report,
Case No. 2735, para. 605; and 372nd Report, Case No. 3022, para. 614.)
832. Officials working in the administration of justice and the judiciary are officials
who exercise authority in the name of the State and whose right to strike could thus
be subject to restrictions, such as its suspension or even prohibition.
(See the 2006 Digest, para. 578; 344th Report, Case No. 2461, para. 313; 348th Report,
Case No. 2088, para. 176; 353rd Report, Case No. 2614, para. 398; 359th Report,
Case No. 2776, para. 288; 371st Report, Case No. 2203, para. 534; and 374th Report,
Case No. 3024, para. 556.)
833. The prohibition of the right to strike of customs officers, who are public servants
exercising authority in the name of the State, is not contrary to the principles of
freedom of association.
(See the 2006 Digest, para. 579; 357th Report, Case No. 2690, para. 947; 362nd Report,
Case No. 2723, para. 842; and 365th Report, Case No. 2723, para. 778.)
834. Employees performing tasks related to the administration, audit and collection
of internal revenues also exercise authority in the name of the State.
(See 357th Report, Case No. 2690, para. 947.)
835. Action taken by a government to obtain a court injunction to put a temporary
end to a strike in the public sector does not constitute an infringement of trade
union rights.
(See the 2006 Digest, para. 580.)
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156
C. Essential services
836. To determine situations in which a strike could be prohibited, the criterion
which has to be established is the existence of a clear and imminent threat to the life,
personal safety or health of the whole or part of the population.
(See the 2006 Digest, para. 581; 343rd Report, Case No. 2355, para. 469; 346th Report,
Case No. 2488, para. 1328; 348th Report, Case No. 2519, para. 1141; 349th Report,
Case No. 2552, para. 421; and 364th Report, Case No. 2907, para. 670.)
837. What is meant by essential services in the strict sense of the term depends to a
large extent on the particular circumstances prevailing in a country. Moreover, this
concept is not absolute, in the sense that a non-essential service may become essential
if a strike lasts beyond a certain time or extends beyond a certain scope, thus
endangering the life, personal safety or health of the whole or part of the population.
(See the 2006 Digest, para. 582; 343rd Report, Case No. 2432, para. 1024; 348th Report,
Case No. 2519, para. 1142; 349th Report, Case No. 2552, para. 422; 351st Report,
Case No. 2355, para. 361, Case No. 2581, para. 1336; 354th Report, Case No. 2581,
para. 1114; and 372nd Report, Case No. 3038, para. 469.)
838. The principle regarding the prohibition of strikes in essential services might
lose its meaning if a strike were declared illegal in one or more undertakings which
were not performing an “essential service” in the strict sense of the term, i.e. services
whose interruption would endanger the life, personal safety or health of the whole or
part of the population.
(See the 2006 Digest, para. 583; 343rd Report, Case No. 2432, para. 1024; and 348th Report,
Case No. 2519, para. 1142.)
839. It would not appear to be appropriate for all state-owned undertakings to be
treated on the same basis in respect of limitations of the right to strike, without distinguishing
in the relevant legislation between those which are genuinely essential
and those which are not.
(See the 2006 Digest, para. 584; and 374th Report, Case No. 3057, para. 214.)
840. The following may be considered to be essential services:
the hospital sector
(See the 2006 Digest, para. 585; 349th Report, Case No. 2552, para. 422; 351st Report,
Case No. 2581, para. 1336; and 355th Report, Case No. 2659, para. 240);
electricity services
(See the 2006 Digest, para. 585; 349th Report, Case No. 2552, para. 422; 351st Report,
Case No. 2581, para. 1336; 362nd Report, Case No. 2723, para. 842; and 365th Report,
Case No. 2723, para. 778);
water supply services
(See the 2006 Digest, para. 585; 349th Report, Case No. 2552, para. 422; 351st Report,
Case No. 2581, para. 1336; 354th Report, Case No. 2649, para. 395; 362nd Report,
Case No. 2723, para. 842; and 365th Report, Case No. 2723, para. 778);
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10. Right to strike
the telephone service
(See the 2006 Digest, para. 585; 349th Report, Case No. 2552, para. 422; 351st Report,
Case No. 2581, para. 1336; 362nd Report, Case No. 2723, para. 842; and 365th Report,
Case No. 2723, para. 778);
the police and the armed forces
(See the 2006 Digest, para. 585; and 349th Report, Case No. 2552, para. 422);
the fire-fighting services
(See the 2006 Digest, para. 585; and 351st Report, Case No. 2581, para. 1336);
public or private prison services
(See the 2006 Digest, para. 585; and 349th Report, Case No. 2552, para. 422);
the provision of food to pupils of school age and the cleaning of schools
(See the 2006 Digest, para. 585; and 360th Report, Case No. 2784, para. 243);
air traffic control
(See the 2006 Digest, para. 585; 349th Report, Case No. 2552, para. 422; 351st Report,
Case No. 2581, para. 1336; 353rd Report, Case No. 2631, para. 1357; 362nd Report,
Case No. 2785, para. 736, Case No. 2841, para. 1041; and 376th Report, Case No. 3079,
para. 421).
841. The principle that air traffic control is an essential service applies to all strikes,
whatever their form – go-slow, work-to-rule, sick-out, etc. – as these may be just as
dangerous as a regular strike for the life, personal safety or health of the whole or
part of the population.
(See the 2006 Digest, para. 586.)
842. The following do not constitute essential services in the strict sense of the term:
radio and television
(See the 2006 Digest, para. 587; 343rd Report, Case No. 2432, para. 1024; 348th Report,
Case No. 2519, para. 1144; 351st Report, Case No. 2581, para. 1336; 362nd Report,
Case No. 2723, para. 842; and 365th Report, Case No. 2723, para. 778);
the petroleum sector and oil facilities
(See the 2006 Digest, para. 587; 343rd Report, Case No. 2355, para. 469, Case No. 2432,
para. 1024; 348th Report, Case No. 2519, para. 1144; 349th Report, Case No. 2552,
para. 422; 362nd Report, Case No. 2841, para. 1036; 364th Report, Case No. 2727,
para. 1082; 371st Report, Case No. 2988, para. 851; 372nd Report, Case No. 3038, para. 469;
and 374th Report, Case No. 2946, para. 253);
distribution of fuel to ensure that flights continue to operate
(362nd Report, Case No. 2841, para. 1041);
the gas sector
(See 349th Report, Case No. 2552, para. 422);
filling and selling gas canisters
(See 358th Report, Case No. 2727, para. 979);
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158
ports
(See the 2006 Digest, para. 587; 343rd Report, Case No. 2432, para. 1024; 348th Report,
Case No. 2540, para. 817, Case No. 2519, para. 1142, Case No. 2530, para. 1191;
349th Report, Case No. 2552, para. 422; 353rd Report, Case No. 2619, para. 573;
357th Report, Case No. 2690, para. 943; and 371st Report, Case No. 2988, para. 851);
banking
(See the 2006 Digest, para. 587; 343rd Report, Case No. 2432, para. 1024; 349th Report,
Case No. 2545, para. 1149; 351st Report, Case No. 2581, para. 1336; 362nd Report,
Case No. 2723, para. 842; and 365th Report, Case No. 2723, para. 778);
the Central Bank
(See 348th Report, Case No. 2519, para. 1144);
insurance services
(See 349th Report, Case No. 2545, para. 1149);
computer services for the collection of excise duties and taxes
(See the 2006 Digest, para. 587);
department stores and pleasure parks
(See the 2006 Digest, para. 587);
the metal and mining sectors
(See the 2006 Digest, para. 587);
transport generally, including metropolitan transport
(See the 2006 Digest, para. 587; 340th Report, Case No. 2415, para. 1254; 342nd Report,
Case No. 2252, para. 155; 343rd Report, Case No. 2432, para. 1024; 346th Report,
Case No. 2506, para. 1071; 348th Report, Case No. 2540, para. 817, Case No. 2519,
para. 1144; 349th Report, Case No. 2552, para. 422; 362nd Report, Case No. 2741, para. 767;
and 371st Report, Case No. 2988, para. 851);
airline pilots
(See the 2006 Digest, para. 587; 371st Report, Case No. 2988, para. 851);
production, transport and distribution of fuel
(See the 2006 Digest, para. 587; 348th Report, Case No. 2530, para. 1191; 362nd Report,
Case No. 2841, para. 1036; 364th Report, Case No. 2727, para. 1082; and 371st Report,
Case No. 2988, para. 851);
rail services
(See the 2006 Digest, para. 587; 348th Report, Case No. 2519, para. 1144; and 372nd Report,
Case No. 3022, para. 614);
metropolitan transport
(See the 2006 Digest, para. 587; 343rd Report, Case No. 2432, para. 1024; 348th Report,
Case No. 2530, para. 1191; and 377th Report, Case No. 3107, para. 240);
postal services
(See the 2006 Digest, para. 587; 343rd Report, Case No. 2432, para. 1024; 348th Report,
Case No. 2519, para. 1144; 351st Report, Case No. 2581, para. 1336; and 367th Report,
Case No. 2894, para. 335);
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10. Right to strike
refuse collection services
(See the 2006 Digest, para. 587);
refrigeration enterprises
(See the 2006 Digest, para. 587);
hotel services
(See the 2006 Digest, para. 587);
construction
(See the 2006 Digest, para. 587);
car manufacturing
(See the 2006 Digest, para. 587);
agricultural activities, the supply and distribution of foodstuffs
(See the 2006 Digest, para. 587; 348th Report, Case No. 2530, para. 1191; and 363rd Report,
Case No. 2704, para. 399);
tea, coffee and coconut plantations
(See 348th Report, Case No. 2519, para. 1144);
the Mint
(See the 2006 Digest, para. 587; 343rd Report, Case No. 2432, para. 1024);
the government printing service and the state alcohol, salt and tobacco monopolies
(See the 2006 Digest, para. 587);
the education sector
(See the 2006 Digest, para. 587; 344th Report, Case No. 2364, para. 91; 346th Report,
Case No. 2489, para. 463, Case No. 1865, para. 772; 348th Report, Case No. 2364,
para. 122; 349th Report, Case No. 2562, para. 406, Case No. 2552, para. 422, Case No. 2489,
para. 686; 351st Report, Case No. 2569, para. 639; 353rd Report, Case No. 2619, para. 573;
354th Report, Case No. 2587, para. 1057; 355th Report, Case No. 2657, para. 573; and
360th Report, Case No. 2803, para. 340);
mineral water bottling companies
(See the 2006 Digest, para. 587);
aircraft repairs
(See 343rd Report, Case No. 2432, para. 1024);
elevator services
(See 344th Report, Case No. 2484, para. 1093);
export services
(See 348th Report, Case No. 2519, para. 1144);
private security services (with the exception of public or private prison services)
(See 349th Report, Case No. 2552, para. 422);
airports (with the exception of air traffic control)
(See 349th Report, Case No. 2552, para. 422);
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160
pharmacies
(See 349th Report, Case No. 2552, para. 422);
bakeries
(See 349th Report, Case No. 2552, para. 422);
beer production
(See 364th Report, Case No. 2907, para. 670);
the glass industry
(See 374th Report, Case No. 3084, para. 871).
843. While the impact which the declaration of a full lockout in the oil and gas
sector may have upon the assessment of the consequences of such collective action
upon daily life is no doubt a relevant national circumstance to be taken into account
by the Committee, it is necessary for such impacts to go beyond mere interference
with trade and commerce and to have endangered the life, personal safety or health
of the whole or part of the population for resort to compulsory arbitration to have
been warranted.
(See 372nd Report, Case No. 3038, para. 470.)
844. While the Committee has found that the education sector does not constitute
an essential service, it has held that principals and vice-principals can have their
right to strike restricted or even prohibited.
(See the 2006 Digest, para. 588; 346th Report, Case No. 2414, para. 18, Case No. 1865,
para. 772; and 351st Report, Case No. 2569, para. 639.)
845. Arguments that civil servants do not traditionally enjoy the right to strike
because the State as their employer has a greater obligation of protection towards
them have not persuaded the Committee to change its position on the right to strike
of teachers.
(See the 2006 Digest, para. 589; 348th Report, Case No. 2364, para. 122; and 351st Report,
Case No. 2569, para. 639.)
846. The possible long-term consequences of strikes in the teaching sector do not
justify their prohibition.
(See the 2006 Digest, para. 590; 348th Report, Case No. 2364, para. 122; and 360th Report,
Case No. 2803, para. 340.)
847. The Committee considers that in appropriate cases in which the imposition of
minimum services is permissible, such as in the sector of refuse collection service,
measures should be taken to guarantee that such minimum services avoid danger to
public health and safety of the population.
(See 309th Report, Case No. 1916, para. 100.)
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10. Right to strike
848. By linking restrictions on strike action to interference with trade and commerce,
a broad range of legitimate strike action could be impeded. While the economic
impact of industrial action and its effect on trade and commerce may be regrettable,
such consequences in and of themselves do not render a service “essential”,
and thus the right to strike should be maintained.
(See the 2006 Digest, para. 592; 353rd Report, Case No. 1865, para. 715; 362nd Report,
Case No. 2723, para. 842; 363rd Report, Case No. 2602, para. 465; 365th Report,
Case No. 2829, para. 577, Case No. 2723, para. 778; 370th Report, Case No. 2983, para. 285;
and 372nd Report, Case No. 3038, para. 469.)
849. Within essential services, certain categories of employees, such as hospital labourers
and gardeners, should not be deprived of the right to strike.
(See the 2006 Digest, para. 593; 371st Report, Case No. 2988, para. 851; and 374th Report,
Case No. 3057, para. 215.)
850. The exclusion from the right to strike of wage-earners in the private sector who
are on probation is incompatible with the principles of freedom of association.
(See the 2006 Digest, para. 594.)
851. Although it has always been sensitive to the fact that a prolonged interruption
in postal services can affect third parties who have no connection with the dispute
and that it may, for example, have serious repercussions for companies and directly
affects individuals (in particular recipients of unemployment benefits or social assistance
and elderly people who depend on their pension payments), the Committee
nevertheless considered that, whatever the case may be, and however unfortunate
such consequences are, they do not justify a restriction of the fundamental rights of
freedom of association and collective bargaining, unless they become so serious as
to endanger the life, safety or health of part or all of the population.
(See 316th Report, Case No. 1985, paras 322-323; and 367th Report, Case No. 2894,
para. 336.)
852. In a case in which a collective agreement included the classification of several
services as essential, the Committee observed that, generally speaking, the list in
the collective agreement, which went far beyond the mining sector to cover the provision
of services to the community at large, corresponded to its notion of essential
services. Although some of the services set out in the agreement, such as those concerning
sanitation and transport, fell outside the scope of essential services in the
strict sense of the term, these restrictions on the right to strike were the result of an
agreement freely entered into by the two parties.
(See 346th Report, Case No. 2500, para. 325).
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162
D. Compensatory guarantees in the event of the prohibition
of strikes in the public service or in essential services
853. Where the right to strike is restricted or prohibited in certain essential undertakings
or services, adequate protection should be given to the workers to compensate
for the limitation thereby placed on their freedom of action with regard to disputes
affecting such undertakings and services.
(See the 2006 Digest, para. 595; 344th Report, Case No. 2467, para. 578; 349th Report,
Case No. 2552, para. 421; 350th Report, Case No. 2543, para. 726; 356th Report,
Case No. 2654, para. 376; 367th Report, Case No. 2860, para. 1182; and 370th Report,
Case No. 2956, para. 142.)
854. In the event that an intervention would be necessary for safety reasons, the
parties to the dispute should be given every opportunity to bargain collectively, for a
sufficient period of time, with the help of independent facilitators and machinery and
procedures designed with the foremost objective of promoting collective bargaining.
(See 344th Report, Case No. 2484, para. 1095.)
855. Based on the premise that a negotiated agreement, however unsatisfactory, is
to be preferred to an imposed solution, the parties should always retain the option of
returning voluntarily to the bargaining table, which implies that whatever disputes
settlement mechanism is adopted, it should be possible to suspend the compulsory
arbitration process, if the parties wish to resume negotiations.
(See 344th Report, Case No. 2484, para. 1095.)
856. As regards the nature of appropriate guarantees in cases where restrictions are
placed on the right to strike in essential services and the public service, restrictions
on the right to strike should be accompanied by adequate, impartial and speedy conciliation
and arbitration proceedings in which the parties concerned can take part at
every stage and in which the awards, once made, are fully and promptly implemented.
(See the 2006 Digest, para. 596; 340th Report, Case No. 2415, para. 1256; 344th Report,
Case No. 2484, para. 1095; 349th Report, Case No. 2552, para. 421; 350th Report,
Case No. 2543, para. 726; 353rd Report, Case No. 2631, para. 1357; 356th Report,
Case No. 2654, para. 376; 359th Report, Case No. 2383, para. 182; 367th Report,
Case No. 2885, para. 384, Case No. 2929, para. 637; 370th Report, Case No. 2956, para. 142;
and 371st Report, Case No. 2203, para. 534.)
857. The reservation of budgetary powers to the legislative authority should not
have the effect of preventing compliance with the terms of awards handed down by
the compulsory arbitration tribunal. Any departure from this practice would detract
from the effective application of the principle that, where strikes by workers in essential
services are prohibited or restricted, such prohibition should be accompanied by
the existence of conciliation procedures and of impartial arbitration machinery, the
awards of which are binding on both parties.
(See the 2006 Digest, para. 597; and 359th Report, Case No. 2383, para. 181.)
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10. Right to strike
858. In mediation and arbitration proceedings it is essential that all the members of
the bodies entrusted with such functions should not only be strictly impartial but, if
the confidence of both sides, on which the successful outcome even of compulsory
arbitration really depends, is to be gained and maintained, they should also appear
to be impartial both to the employers and to the workers concerned.
(See the 2006 Digest, para. 598; 340th Report, Case No. 2415, para. 1256; 356th Report,
Case No. 2654, para. 382; 359th Report, Case No. 2383, para. 183; 367th Report,
Case No. 2894, para. 341; and 370th Report, Case No. 2983, para. 286.)
859. The appointment by the minister of all five members of the Essential Services
Arbitration Tribunal calls into question the independence and impartiality of such
a tribunal, as well as the confidence of the concerned parties in such a system. The
representative organizations of workers and employers should, respectively, be able
to select members of the Essential Services Arbitration Tribunal who represent them.
(See the 2006 Digest, para. 599.)
860. Employees deprived of the right to strike because they perform essential services
must have appropriate guarantees to safeguard their interests; a corresponding
denial of the right of lockout, provision of joint conciliation procedures and where,
and only where, conciliation fails, the provision of joint arbitration machinery.
(See the 2006 Digest, para. 600; 355th Report, Case No. 2659, para. 241; and 371st Report,
Case No. 2988, para. 854.)
861. Referring to its recommendation that restrictions on the right to strike would
be acceptable if accompanied by conciliation and arbitration procedures, the Committee
has made it clear that this recommendation does not refer to the absolute prohibition
of the right to strike, but to the restriction of that right in essential services
or in the public service, in relation to which adequate guarantees should be provided
to safeguard the workers’ interests.
(See the 2006 Digest, para. 601.)
862. Regarding the requirement that the parties pay for the conciliation and mediation/
arbitration services, the Committee has concluded that, provided the costs
are reasonable and do not inhibit the ability of the parties, in particular those with
inadequate resources, to make use of the services, there has not been a violation of
freedom of association on this basis.
(See the 2006 Digest, para. 602.)
863. The Committee takes no position as to the desirability of conciliation over
mediation as both are means of assisting the parties in voluntarily reaching an
agreement. Nor does the Committee take a position as to the desirability of a separated
conciliation and arbitration system over a combined mediation-arbitration
system, as long as the members of the bodies entrusted with such functions are impartial
and are seen to be impartial.
(See the 2006 Digest, para. 603.)
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Situations in which a minimum service may be imposed to guarantee
the safety of persons and equipment (minimum safety service)
864. Restrictions on the right to strike in certain sectors to the extent necessary to
comply with statutory safety requirements are normal restrictions.
(See the 2006 Digest, para. 604.)
865. In one case, the legislation provided that occupational organizations in all
branches of activity were obliged to ensure that the staff necessary for the safety
of machinery and equipment and the prevention of accidents continued to work,
and that disagreements as to the definition of “necessary staff” would be settled by
an administrative arbitration tribunal. These restrictions on the right to strike were
considered to be acceptable.
(See the 2006 Digest, para. 605.)
Situations and conditions under which
a minimum operational service could be required
866. The establishment of minimum services in the case of strike action should only
be possible in: (1) services the interruption of which would endanger the life, personal
safety or health of the whole or part of the population (essential services in the strict
sense of the term); (2) services which are not essential in the strict sense of the term
but where the extent and duration of a strike might be such as to result in an acute
national crisis endangering the normal living conditions of the population; and (3) in
public services of fundamental importance.
(See the 2006 Digest, para. 606; 343rd Report, Case No. 2355, para. 469, Case No. 2432,
para. 1024; 344th Report, Case No. 2509, para. 1242; 346th Report, Case No. 2506,
para. 1071; 348th Report, Case No. 2355, para. 308; 349th Report, Case No. 2548, para. 538,
Case No. 2534, para. 558; 362nd Report, Case No. 2841, para. 1037; and 364th Report,
Case No. 2727, para. 1082.)
867. A minimum service could be appropriate as a possible alternative in situations
in which a substantial restriction or total prohibition of strike action would not
appear to be justified and where, without calling into question the right to strike of
the large majority of workers, one might consider ensuring that users’ basic needs are
met or that facilities operate safely or without interruption.
(See the 2006 Digest, para. 607; 344th Report, Case No. 2461, para. 313, Case No. 2484,
para. 1094; 348th Report, Case No. 2433, para. 48; 349th Report, Case No. 2545,
para. 1153; 350th Report, Case No. 2543, para. 727; 354th Report, Case No. 2581,
para. 1114; 356th Report, Case No. 2654, para. 371; 362nd Report, Case No. 2741, para. 768,
Case No. 2841, para. 1041; 371st Report, Case No. 2988, para. 851; 372nd Report,
Case No. 3022, para. 614; and 377th Report, Case No. 3107, para. 240.)
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10. Right to strike
868. When a service that is not essential in the strict sense of the term but is part of
a very important sector in the country is brought to a standstill, measures to guarantee
a minimum service may be justified.
(See 362nd Report, Case No. 2841, para. 1041; 367th Report, Case No. 2894, para. 339; and
370th Report, Case No. 2983, para. 285.)
869. It would be desirable if, in cases of industrial action which would have brought
a service that is not essential in the strict sense of the term but a very important
sector in the country – in this case the oil and gas sector – to a standstill, the concerned
parties could reach an agreement on minimum services sufficient to address
the concerns of the Government about the consequences of a full shutdown of oil
and gas production, while preserving respect for the principles of the right to strike
and the voluntary nature of collective bargaining. The Committee therefore encouraged
the Government to examine the possibility of introducing a minimum service
in that sector in the event of industrial action, the scope or duration of which may
result in irreversible damages.
(See 372nd Report, Case No. 3038, paras. 471 and 472.)
870. Measures should be taken to guarantee that the minimum services avoid
danger to public health and safety.
(See the 2006 Digest, para. 608; and 344th Report, Case No. 2484, para. 1094.)
871. A certain minimum service may be requested in the event of strikes whose
scope and duration would cause an acute national crisis, but in this case, the trade
union organizations should be able to participate, along with employers and the
public authorities, in defining the minimum service.
(See the 2006 Digest, para. 609; and 349th Report, Case No. 2549, para. 368.)
872. The requisition of some striking workers in the petroleum sector to meet the
refuelling needs of priority vehicles could be used in the temporary establishment of
a minimum service to respond to problems of public order that could impact the life,
health or security of the population.
(See 362nd Report, Case No. 2841, para. 1038.)
873. A minimum service may be set up in the event of a strike, the extent and duration
of which might be such as to result in an acute national crisis endangering
the normal living conditions of the population. Such a minimum service should be
confined to operations that are strictly necessary to avoid endangering the life or
normal living conditions of the whole or part of the population; in addition, workers’
organizations should be able to participate in defining such a service in the same way
as employers and the public authorities.
(See the 2006 Digest, para. 610; 344th Report, Case No. 2484, para. 1094; 349th Report,
Case No. 2552, para. 422; 354th Report, Case No. 2587, para. 1057; 356th Report,
Case No. 2696, para. 308; 363rd Report, Case No. 2854, para. 1039; 371st Report,
Case No. 2988, para. 851; and 372nd Report, Case No. 3038, para. 471.)
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166
874. Minimum service should be restricted to the operations which are necessary
to satisfy the basic needs of the population or the minimum requirements of the
service, while ensuring that the scope of the minimum service does not render the
strike ineffective.
(See 356th Report, Case No. 2696, para. 309.)
875. It would be desirable for actions to be taken wherever convenient so that the
negotiations on the definition and organization of the minimum service not be held
during a labour dispute so that all parties can examine the matters with the necessary
full frankness and objectivity.
(See 356th Report, Case No. 2654, para. 375.)
876. Negotiations over the minimum service should be ideally held prior to a labour
dispute, so that all parties can examine the matter with the necessary objectivity and
detachment. Any disagreement should be settled by an independent body, like for
instance, the judicial authorities, and not by the ministry concerned.
(See 346th Report, Case No. 2506, para. 1073; 349th Report, Case No. 2506, para. 124; and
362nd Report, Case No. 2841, para. 1039.)
877. The Committee requested a government to take the necessary measures to
ensure that any determination on the minimum service to be made available in the
event of a strike was the result of negotiations between employers’ and workers’ organizations
of the maritime sector, it being understood that such negotiations could
take place, if not before the beginning of a conflict, between the date of the notification
of the strike and its possible realization, all the more so in the light of the
ongoing civil mobilization.
(See 362nd Report, Case No. 2838, para. 1076).
878. While ideally, a minimum service should be negotiated by the parties concerned,
preferably prior to the existence of a dispute, the Committee recognizes that
the minimum service to be provided in cases where the need arises only after the
declaration of the strike can only be determined during the dispute.
(See 349th Report, Case No. 2545, para. 1152; and 344th Report, Case No. 2484, para. 1094)
879. In the absence of any agreement by the parties in this regard at the specific
enterprise level, an independent body could be set up to impose a minimum service
sufficient to address the concerns of the Government about the consequences of the
dispute, while preserving respect for the principles of the right to strike and the voluntary
nature of collective bargaining.
(See 349th Report, Case No. 2545, para. 1152.)
880. The Committee has pointed out that it is important that the provisions regarding
the minimum service to be maintained in the event of a strike in an essential service are
established clearly, applied strictly and made known to those concerned in due time.
(See the 2006 Digest, para. 611; and 344th Report, Case No. 2461, para. 313.)
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10. Right to strike
881. The determination of minimum services and the minimum number of workers
providing them should involve not only the public authorities, but also the relevant
employers’ and workers’ organizations. This not only allows a careful exchange of
viewpoints on what in a given situation can be considered to be the minimum services
that are strictly necessary, but also contributes to guaranteeing that the scope
of the minimum service does not result in the strike becoming ineffective in practice
because of its limited impact, and to dissipating possible impressions in the trade
union organizations that a strike has come to nothing because of overgenerous and
unilaterally fixed minimum services.
(See the 2006 Digest, para. 612; 340th Report, Case No. 2415, para. 1255; 344th Report,
Case No. 2509, para. 1243; 346th Report, Case No. 2506, para. 1073; 349th Report,
Case No. 2548, para. 538, Case No. 2534, para. 559; 350th Report, Case No. 2543,
para. 727; 354th Report, Case No. 2587, para. 1059, Case No. 2581, para. 1114; 356th Report,
Case No. 2696, para. 309, Case No. 2654, para. 372; and 362nd Report, Case No. 2741,
para. 768, Case No. 2841, para. 1039 and Case No. 2838, para. 1076.)
882. The workers’ and employers’ organizations concerned must be able to participate
in determining the minimum services which should be ensured, and in the
event of disagreement, legislation should provide that the matter be resolved by an
independent body and not by the administrative authority.
(See 348th Report, Case No. 2540, para. 817, Case No. 2530, para. 1191; and 349th Report,
Case No. 2548, para. 539 and Case No. 2534, para. 559.)
883. Unilateral determination by the employer of minimum service, if negotiation
has failed, is not in conformity with the principles of freedom of association. Any
disagreement in this respect should be settled by an independent body having the
confidence of the parties concerned.
(See 349th Report, Case No. 2525, para. 188.)
884. As regards the legal requirement that a minimum service must be maintained
in the event of a strike in essential public services, and that any disagreement as
to the number and duties of the workers concerned shall be settled by the labour
authority, the Committee is of the opinion that the legislation should provide for any
such disagreement to be settled by an independent body and not by the ministry of
labour or the ministry or public enterprise concerned.
(See the 2006 Digest, para. 613; 349th Report, Case No. 2534, para. 559; 350th Report,
Case No. 2543, para. 727; 355th Report, Case No. 2659, para. 241; 362nd Report,
Case No. 2741, para. 768; and 376th Report, Case No. 3096, para. 890.)
885. A definitive ruling on whether the level of minimum services was indispensable
or not – made in full knowledge of the facts – can be pronounced only by the judicial
authorities, in so far as it depends, in particular, upon a thorough knowledge of the
structure and functioning of the enterprises and establishments concerned and of the
real impact of the strike action.
(See the 2006 Digest, para. 614; 356th Report, Case No. 2654, para. 375; and 376th Report,
Case No. 3096, para. 891.)
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168
Examples of when the Committee has considered that
the conditions were met for requiring a minimum operational service
886. The ferry service is not an essential service. However, in view of the difficulties
and inconveniences that the population living on islands along the coast could be
subjected to following a stoppage in ferry services, an agreement may be concluded
on minimum services to be maintained in the event of a strike.
(See the 2006 Digest, para. 615; 346th Report, Case No. 2506, para. 1071; 349th Report,
Case No. 2506, para. 124; and 362nd Report, Case No. 2838, para. 1076.)
887. In the maritime sector, the minimum service may relate to the number of crossings
carried out per day, instead of the number of staff manning the ship.
(See 353rd Report, Case No. 2506, para. 101.)
888. The services provided by the National Ports Enterprise and ports themselves
do not constitute essential services, although they are an important public service in
which a minimum service could be required in case of a strike.
(See the 2006 Digest, para. 616; 348th Report, Case No. 2540, para. 817; 353rd Report,
Case No. 2619, para. 573; 357th Report, Case No. 2690, para. 943; and 363rd Report,
Case No. 2854, para. 1039.)
889. Respect for the obligation to maintain a minimum service of the underground
railway’s activities to meet the minimal needs of the local communities is not an infringement
of the principles of freedom of association.
(See the 2006 Digest, para. 617; 344th Report, Case No. 2509, para. 1242; and 362nd Report,
Case No. 2741, para. 768.)
890. In relation to strike action taken by workers in the underground transport enterprise,
the establishment of minimum services in the absence of agreement between
the parties should be handled by an independent body.
(See the 2006 Digest, para. 618; and 362nd Report, Case No. 2741, para. 768.)
891. It is legitimate for a minimum service to be maintained in the event of a strike
in the rail transport sector.
(See the 2006 Digest, para. 619; and 372nd Report, Case No. 3022, para. 614.)
892. In view of the particular situation of the railway services of one country, a total
and prolonged stoppage could lead to a situation of acute national emergency endangering
the well-being of the population, which may in certain circumstances justify
government intervention, for instance by establishing a minimum service.
(See the 2006 Digest, para. 620.)
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10. Right to strike
893. The transportation of passengers and commercial goods is not an essential
service in the strict sense of the term; however, this is a public service of primary
importance where the requirement of a minimum service in the event of a strike can
be justified.
(See the 2006 Digest, para. 621; 340th Report, Case No. 2415, para. 1254; 346th Report,
Case No. 1865, para. 755, Case No. 2506, para. 1071, Case No. 2488, para. 1332; 348th Report,
Case No. 2540, para. 817, Case No. 2530, para. 1191; 353rd Report, Case No. 1865, para. 711;
362nd Report, Case No. 2838, para. 1076; and 377th Report, Case No. 3107, para. 240.)
894. The maintenance of a minimum service could be foreseen in the postal services.
(See the 2006 Digest, para. 622.)
895. The Mint, banking services and the petroleum sector are services where a
minimum negotiated service could be maintained in the event of a strike so as to
ensure that the basic needs of the users of these services are satisfied.
(See the 2006 Digest, para. 624; 346th Report, Case No. 1865, para. 755; 348th Report,
Case No. 2355, para. 308; 353rd Report, Case No. 1865, para. 711; and 364th Report,
Case No. 2727, para. 1082.)
896. While banking services are not essential in the strict sense of the term, the
Committee does consider that in order to avoid damages which are irreversible, as
well as damages to third parties, namely the users or consumers who suffer the economic
effects of collective disputes, the authority could have imposed respect for the
procedures relating to the minimum services agreed to by the parties rather than
impose compulsory arbitration.
(See 349th Report, Case No. 2545, para. 1152.)
897. Given that the petroleum sector is a strategic service, of vital importance to the
economic development of the country, nothing prevents a minimum service being
imposed in this sector.
(See 343rd Report, Case No. 2355, para. 469.)
898. Minimum services may be established in the education sector, in full consultation
with the social partners, in cases of strikes of long duration.
(See the 2006 Digest, para. 625; 353rd Report, Case No. 2619, para. 573; 354th Report,
Case No. 2587, para. 1057; 356th Report, Case No. 2696, para. 308; and 360th Report,
Case No. 2784, para. 243 and Case No. 2803, para. 340.)
899. The Committee considered that establishing a minimum service in the education
sector is not contrary to the principles of freedom of association.
(See 354th Report, Case No. 2587, para. 1058)
900. The decision adopted by a government to require a minimum service in the
Animal Health Division, in the face of an outbreak of a highly contagious disease,
does not violate the principles of freedom of association.
(See the 2006 Digest, para. 626.)
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901. The lasting absence of qualified maintenance of elevators and provision of
basic services could potentially create a danger to public health and safety.
(See 344th Report, Case No. 2484, para. 1093.)
902. Given that the services provided by the National Institute of Meteorology and
Geophysics are essential for air traffic control to be carried out safely, this is an institution
in which minimum services can be established when workers have decided
to call a strike.
(See 349th Report, Case No. 2534, para. 558.)
903. In the circumstances of a case concerning the employers’ determination of
a minimum service, the Committee considered that the production of aluminium
cannot be viewed as an essential public utility for which a minimum service can
be imposed.
(See 346th Report, Case No. 2525, para. 1240.)
904. Certain services, such as licensing of boiler and pressure vessels, licensing of
private investigators and security guards, laundry staff and drivers in a community
living division attached to public authorities should not be unilaterally declared as
“essential” where minimum services must be maintained.
(See 356th Report, Case No. 2654, para. 371.)
Non-compliance with a minimum service
905. Even though the final decision to suspend or revoke a trade union’s legal status
is made by an independent judicial body, such measures should not be adopted in the
case of non-compliance with a minimum service.
(See the 2006 Digest, para. 627.)
906. The Committee requested a government to guarantee that civil requisition is
only used in cases where the minimum services established in accordance with the
principles of freedom of association are not respected.
(See 349th Report, Case No. 2534, para. 560.)
Responsibility for declaring a strike illegal
907. Responsibility for declaring a strike illegal should not lie with the government,
but with an independent body which has the confidence of the parties involved.
(See the 2006 Digest, para. 628; 342nd Report, Case No. 2356, para. 360; 343rd Report,
Case No. 2355, para. 470; 346th Report, Case No. 2489, para. 464; 348th Report,
Case No. 2355, para. 309, Case No. 2356, para. 368; 349th Report, Case No. 2513,
para. 329, Case No. 2489, para. 686; 351st Report, Case No. 2613, para. 1091; 353rd Report,
Case No. 2614, para. 401, Case No. 2650, para. 420, Case No. 2619, para. 575; 354th Report,
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10. Right to strike
Case No. 2587, para. 1060; 355th Report, Case No. 2664, para. 1088; 357th Report,
Case No. 2664, para. 811, Case No. 2697, para. 984; 358th Report, Case No. 2735,
para. 605; 360th Report, Case No. 2664, para. 954; 362nd Report, Case No. 2723, para. 842,
Case No. 2794, para. 1137; 363rd Report, Case No. 2837, para. 310, Case No.2867,
para. 357; 364th Report, Case No. 2866, para. 873; 365th Report, Case No. 2723, para. 778;
368th Report, Case No.2867, para. 17; 370th Report, Case No. 2994, para. 735; 371st Report,
Case No. 2928, para. 313, Case No. 3033, para. 763; and 374th Report, Case No. 3029,
para. 109 and Case No. 3032, para. 416.)
908. The Committee requested the Government to take the necessary measures,
including proposals on legislative measures where necessary, to ensure that the responsibility
for declaring a strike legal or illegal did not lie with the Government but
with an independent and impartial body.
(See 374th Report, Case No. 3029, para. 109)
909. The responsibility for declaring a strike illegal should not lie with the Government,
but with an independent and impartial body.
(See 378th Report, Case No. 3032, para. 392)
910. To declare a strike or work stoppage illegal, the judicial authority is best placed
to act as an independent authority.
(See 343rd Report, Case No. 2355, para. 471; and 348th Report, Case No. 2355, para. 309
and Case No. 2356, para. 368.)
911. Final decisions concerning the illegality of strikes should not be made by
the government, especially in those cases in which the government is a party to
the dispute.
(See the 2006 Digest, para. 629; 343rd Report, Case No. 2355, para. 471; 348th Report,
Case No. 2355, para. 309; 362nd Report, Case No. 2794, para. 1137; and 367th Report,
Case No. 2860, para. 1182.)
912. It is contrary to freedom of association that the right to declare a strike in the
public service illegal should lie with the heads of public institutions, which are thus
judges and parties to a dispute.
(See the 2006 Digest, para. 630; 358th Report, Case No. 2735, para. 605; and 367th Report,
Case No. 2860, para. 1182.)
913. With reference to an official circular concerning the illegality of any strike in
the public sector, the Committee has considered that such matters are not within the
competence of the administrative authority.
(See the 2006 Digest, para. 631.)
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Suspension of a strike
914. The responsibility for suspending a strike should not lie with the Government,
but with an independent body which has the confidence of all parties concerned.
(See 374th Report, Case No. 3084, para. 872.)
915. The Committee requested the Government to take the necessary measures to
amend the legislation so as to ensure that the final decision whether to suspend a
strike rests with an independent and impartial body.
(See 374th Report, Case No.3084, para. 872.)
916. A provision which allows the Government to suspend a strike and impose compulsory
arbitration on the grounds of national security or public health is not in itself
contrary to freedom of association principles as long as it is implemented in good
faith and in accordance with the ordinary meaning of the terms “national security”
and “public health”.
(See 374th Report, Case No. 3084, para. 871.)
Back-to-work orders, the hiring of workers
during a strike, requisitioning orders
917. Strikers should be replaced only: (a) in the case of a strike in an essential service
in the strict sense of the term in which the legislation prohibits strikes; and (b) where
the strike would cause an acute national crisis.
(See 354th Report, Case No. 2587, para. 1061.)
918. The hiring of workers to break a strike in a sector which cannot be regarded
as an essential sector in the strict sense of the term, and hence one in which strikes
might be forbidden, constitutes a serious violation of freedom of association.
(See the 2006 Digest, para. 632; 343rd Report, Case No. 2472, para. 966; 344th Report,
Case No. 2465, para. 722; 346th Report, Case No. 1865, para. 757; 349th Report,
Case No. 2562, para. 406, Case No. 2548, para. 538; 350th Report, Case No. 2563,
para. 230; 353rd Report, Case No. 2619, para. 574; 357th Report, Case No. 2638, para. 797,
Case No. 2697, para. 983; 360th Report, Case No. 2770, para. 372; 372nd Report,
Case No. 3011, para. 650; and 376th Report, Case No. 3096, para. 893.)
919. If a strike is legal, recourse to the use of labour drawn from outside the undertaking
to replace the strikers for an indeterminate period entails a risk of derogation
from the right to strike, which may affect the free exercise of trade union rights.
(See the 2006 Digest, para. 633; 343rd Report, Case No. 2472, para. 966; 344th Report,
Case No. 2365, para. 1448; 353rd Report, Case No. 1865, para. 711; 357th Report,
Case No. 2638, para. 797; and 360th Report, Case No. 2770, para. 371.)
920. Whenever a total and prolonged strike in a vital sector of the economy might
cause a situation in which the life, health or personal safety of the population might
be endangered, a back-to-work order might be lawful, if applied to a specific category
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10. Right to strike
of staff in the event of a strike whose scope and duration could cause such a situation.
However, a back-to-work requirement outside such cases is contrary to the principles
of freedom of association.
(See the 2006 Digest, para. 634; 344th Report, Case No. 2467, para. 578; and 346th Report,
Case No. 2506, para. 1075.)
921. The use of the military and requisitioning orders to break a strike over occupational
claims, unless these actions aim at maintaining essential services in
circumstances of the utmost gravity, constitutes a serious violation of freedom
of association.
(See the 2006 Digest, para. 635.)
922. The employment of the armed forces or of another group of persons to perform
duties which have been suspended as a result of a labour dispute can, if the
strike is lawful, be justified only by the need to ensure the operation of services or
industries whose suspension would lead to an acute crisis.
(See the 2006 Digest, para. 636; and 360th Report, Case No. 2770, para. 372.)
923. Although it is recognized that a stoppage in services or undertakings such as
transport companies, railways and the oil sector might disturb the normal life of the
community, it can hardly be admitted that the stoppage of such services could cause
a state of acute national emergency. The Committee has therefore considered that
measures taken to mobilize workers at the time of disputes in services of this kind are
such as to restrict the workers’ right to strike as a means of defending their occupational
and economic interests.
(See the 2006 Digest, para. 637.)
924. The requisitioning of iron and steel workers in the case of strikes, the threat of
dismissal of strike pickets, the recruitment of underpaid workers and a ban on the
joining of a trade union in order to break up lawful and peaceful strikes in services
which are not essential in the strict sense of the term are not in accordance with
freedom of association.
(See 236th Report, Case No. 1270, para. 620.)
925. The Committee permits the hire of non-striking workers in the case of essential
services such as the health service.
(See 376th Report, Case No. 3096, para. 893.)
926. Where an essential public service, such as the telephone service, is interrupted
by an unlawful strike, a government may have to assume the responsibility of ensuring
its functioning in the interests of the community and, for this purpose, may
consider it expedient to call in the armed forces or other persons to perform the
duties which have been suspended and to take the necessary steps to enable such
persons to be installed in the premises where such duties are performed.
(See the 2006 Digest, para. 639.)
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Interference by the authorities
during the course of the strike
927. The mere possibility of intervention by the ministry in strikes beyond essential
services in the strict sense of the term, which is firmly entrenched in the law, along
with the practice of intervening in areas which do not seem, at first sight, to be indispensable
to the national interest, and the many modalities required for a strike
to become legal as well as the serious penalties incurred in case of recourse to an illegal
strike, unavoidably have a bearing on the framework and climate within which
negotiations take place.
(See 346th Report, Case No. 2488, para. 1330.)
928. In one case where the government had consulted the workers in order to determine
whether they wished the strike to continue or be called off, and where the organization
of the ballot had been entrusted to a permanent, independent body, with
the workers enjoying the safeguard of a secret ballot, the Committee emphasized the
desirability of consulting the representative organizations with a view to ensuring
freedom from any influence or pressure by the authorities which might affect the
exercise of the right to strike in practice.
(See the 2006 Digest, para. 640.)
929. The intervention of the army in relation to labour disputes is not conducive to
the climate free from violence, pressure or threats that is essential to the exercise of
freedom of association.
(See the 2006 Digest, para. 641.)
Police intervention during the course of the strike
930. The Committee has recommended the dismissal of allegations of intervention
by the police when the facts showed that such intervention was limited to the
maintenance of public order and did not restrict the legitimate exercise of the right
to strike.
(See the 2006 Digest, para. 642.)
931. The use of police for strike-breaking purposes is an infringement of trade
union rights.
(See the 2006 Digest, para. 643; and 360th Report, Case No. 2747, para. 841.)
932. In cases of strike movements, the authorities should resort to the use of force
only in grave situations where law and order is seriously threatened.
(See the 2006 Digest, para. 644; 340th Report, Case No. 2416, para. 1024; 349th Report,
Case No. 2564, para. 611; 351st Report, Case No. 2581, para. 1332; 362nd Report,
Case No. 2832, para. 1333; and 367th Report, Case No. 2938, para. 227.)
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10. Right to strike
933. While workers and their organizations have an obligation to respect the law
of the land, the intervention by security forces in strike situations should be limited
strictly to the maintenance of public order.
(See the 2006 Digest, para. 645; 356th Report, Case No. 2478, para. 956; and 367th Report,
Case No. 2938, para. 227.)
934. While workers and their organizations are obliged to respect the law of the
land, police intervention to enforce the execution of a court decision affecting strikers
should observe the elementary guarantees applicable in any system that respects fundamental
public freedoms.
(See the 2006 Digest, para. 646; and 350th Report, Case No. 2602, para. 697.)
935. The authorities should resort to calling in the police in a strike situation only
if there is a genuine threat to public order. The intervention of the police should be
in proportion to the threat to public order and governments should take measures
to ensure that the competent authorities receive adequate instructions so as to avoid
the danger of excessive violence in trying to control demonstrations that might undermine
public order.
(See the 2006 Digest, para. 647; 340th Report, Case No. 2416, paras. 1024 and 1025;
343rd Report, Case No. 2472, para. 966; 349th Report, Case No. 2564, para. 611;
359th Report, Case No. 2760, para. 1169; 360th Report, Case No. 2747, para. 841,
Case No. 2745, para. 1073; 363rd Report, Case No. 2792, para. 375; 364th Report,
Case No. 2745, para. 1001; 370th Report, Case No. 2745, para. 679; and 372nd Report,
Case No. 3018, para. 494 and Case No. 3011, para. 650.)
Pickets
936. The action of pickets organized in accordance with the law should not be subject
to interference by the public authorities.
(See the 2006 Digest, para. 648; 346th Report, Case No. 2473, para. 1544; 356th Report,
Case No. 2488, para. 148, Case No. 2652, para. 1216; 363rd Report, Case No. 2792,
para. 374; and 376th Report, Case No. 3096, para. 894.)
937. The prohibition of strike pickets is justified only if the strike ceases to be peaceful.
(See the 2006 Digest, para. 649; 350th Report, Case No. 2252, para. 171; 356th Report,
Case No. 2488, para. 148, Case No. 2652, para. 1216; and 376th Report, Case No. 3096,
para. 894.)
938. The Committee has considered legitimate a legal provision that prohibited
pickets from disturbing public order and threatening workers who continued work.
(See the 2006 Digest, para. 650; 346th Report, Case No. 2473, para. 1544; 350th Report,
Case No. 2602, para. 694; and 376th Report, Case No. 3096, para. 894.)
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176
939. Taking part in picketing and firmly but peacefully inciting other workers to
keep away from their workplace cannot be considered unlawful. The case is different,
however, when picketing is accompanied by violence or coercion of non-strikers in
an attempt to interfere with their freedom to work; such acts constitute criminal
offences in many countries.
(See the 2006 Digest, para. 651; 343rd Report, Case No. 2432, para. 1026; 350th Report,
Case No. 2602, para. 682; 353rd Report, Case No. 1865, para. 716; 354th Report,
Case No. 2668, para. 676; 355th Report, Case No. 2602, para. 666; 363rd Report,
Case No.2867, para. 351, Case No. 2792, para. 374; and 372nd Report, Case No. 3025,
para. 152.)
940. The exercise of the right to strike should respect the freedom to work of nonstrikers,
as established by the legislation, as well as the right of the management to
enter the premises of the enterprise.
(See the 2006 Digest, para. 652; 349th Report, Case No. 2548, para. 540; 350th Report,
Case No. 2602, para. 682; and 353rd Report, Case No. 1865, para. 716.)
941. The requirement that strike pickets can only be set up near an enterprise does
not infringe the principles of freedom of association.
(See the 2006 Digest, para. 653.)
Wage deductions
942. Salary deductions for days of strike give rise to no objection from the point of
view of freedom of association principles.
(See the 2006 Digest, para. 654; 344th Report, Case No. 2464, para. 330, Case No. 2467,
para. 579; 353rd Report, Case No. 2614, para. 397, Case No. 2650, para. 421; 355th Report,
Case No. 2657, para. 573; 358th Report, Case No. 2302, para. 18; 359th Report, Case No. 2725,
para. 261; 362nd Report, Case No. 2788, para. 252, Case No. 2795, para. 326, Case No. 2741,
para. 773, Case No. 2794, para. 1138; 363rd Report, Case No. 1865, para. 110, Case No.2867,
para. 356; 364th Report, Case No. 2847, para. 104; 367th Report, Case No. 2938, para. 230,
Case No. 2885, para. 385, Case No. 2904, para. 418, Case No. 2929, para. 639; 371st
Report, Case No. 3001, para. 210; 372nd Report, Case No. 3024, para. 430; 374th Report,
Case No. 3029, para. 110, Case No. 3024, para. 558; 376th Report, Case No. 3101, para. 859,
Case No. 3096, para. 892; and 378th Report, Case No. 2897, para. 242.)
943. Additional sanctions, such as deductions of pay higher than the amount corresponding
to the period of the strike, amount in this case to a sanction for the exercise
of legitimate industrial action.
(See 362nd Report, Case No. 2741, para. 773.)
944. In a case in which the deductions of pay were higher than the amount corresponding
to the period of the strike, the Committee recalled that the imposition of
sanctions for strike action was not conducive to harmonious labour relations.
(See the 2006 Digest, para. 655; 344th Report, Case No. 2467, para. 579; and 378th Report,
Case No. 2897, para. 242.)
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10. Right to strike
945. Non-payment for the days worked by teachers in place of days of work stoppage,
in particular as a result of an agreement with the governing bodies of the
schools, could constitute an excessive sanction that is not conducive to the development
of harmonious labour relations.
(See 355th Report, Case No. 2657, para. 574.)
946. If the salary deductions are applied to the activists of only one trade union,
and all the unions have taken part in the strike, this situation would constitute de
facto discriminatory treatment against the union concerned, affecting the principles
of freedom of association.
(See 372nd Report, Case No. 3024, para. 430; and 374th Report, Case No. 3024, para. 558.)
947. With regard to allegations that wage deductions were carried out or threatened
to be carried out only in respect of the trade union members and not the other
strikers, the Committee emphasized that this would be contrary to freedom of association
principles.
(See 364th Report, Case No. 2847, para. 104.)
948. Obliging the employer to pay wages in respect of strike days in cases where the
employer is declared “responsible” for the strike, apart from potentially disrupting
the balance in industrial relations and proving costly for the employer, raises problems
of conformity with the principles of freedom of association, as such payment
should be neither required nor prohibited. It should consequently be a matter for
resolution between the parties.
(See the 2006 Digest, para. 656.)
949. Failure to reply to a statement of claims may be deemed an unfair practice contrary
to the principle of good faith in collective bargaining, which may entail certain
penalties as foreseen by law, without resulting in a legal obligation upon the employer
to pay strike days, which is a matter to be left to the parties concerned.
(See the 2006 Digest, para. 657.)
950. Salary deductions for days of strike should only apply to workers who have
taken part in the strike or a protest action.
(See 363rd Report, Case No.2867, para. 356.)
Sanctions
A. In the event of a legitimate strike
951. Imposing sanctions on unions for leading a legitimate strike is a grave violation
of the principles of freedom of association.
(See the 2006 Digest, para. 658; and 362nd Report, Case No. 2794, para. 1138 and
Case No. 2797, para. 1454.)
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178
952. The closure of trade union offices, as a consequence of a legitimate strike, is a
violation of the principles of freedom of association.
(See the 2006 Digest, para. 659.)
953. No one should be penalized for carrying out or attempting to carry out a legitimate
strike.
(See the 2006 Digest, para. 660; 343rd Report, Case No. 2472, para. 966; 346th Report,
Case No. 2473, para. 1532; 348th Report, Case No. 2494, para. 961; 351st Report,
Case No. 2569, para. 640; 355th Report, Case No. 2664, para. 1089; 358th Report,
Case No. 2735, para. 608; 359th Report, Case No. 2754, para. 680; 360th Report,
Case No. 2747, para. 840; 362nd Report, Case No. 2794, para. 1138; 367th Report,
Case No. 2938, para. 227; 368th Report, Case No. 2972, para. 824; 370th Report,
Case No. 2994, para. 735; 372nd Report, Case No. 3004, para. 573; 374th Report,
Case No. 3030, para. 536; and 376th Report, Case No. 2994, para. 1002.)
954. Penal sanctions should not be imposed on any worker for participating in a
peaceful strike.
(See 374th Report, Case No. 3057, para. 217.)
955. Penal sanctions should only be imposed if, in the framework of a strike, violence
against persons and property or other serious violations of the ordinary criminal
law are committed, and this, on the basis of the laws and regulations punishing
such acts.
(See 353rd Report, Case No. 1865, para. 716.)
956. Legislative provisions which impose sanctions in relation to the threat of strike
are contrary to freedom of expression and principles of freedom of association.
(See 374th Report, Case No. 3057, para. 217.)
957. The dismissal of workers because of a strike constitutes serious discrimination
in employment on grounds of legitimate trade union activities and is contrary to
Convention No. 98.
(See the 2006 Digest, para. 661; 340th Report, Case No. 2419, para. 1293; 342nd Report,
Case No. 2450, para. 428; 343rd Report, Case No. 2472, para. 966; 350th Report,
Case No. 2602, para. 681; 355th Report, Case No. 2602, para. 662; 358th Report,
Case No. 2737, para. 636; 359th Report, Case No. 2754, para. 680; 360th Report,
Case No. 2747, para. 842; 362nd Report, Case No. 2797, para. 1454; and 372nd Report,
Case No. 3018, para. 494.)
958. When trade unionists or union leaders are dismissed for having exercised the
right to strike, the Committee can only conclude that they have been punished for
their trade union activities and have been discriminated against.
(See the 2006 Digest, para. 662; 355th Report, Case No. 2664, para. 1089; 357th Report,
Case No. 2664, para. 812; 358th Report, Case No. 2735, para. 606; 360th Report,
Case No. 2747, para. 842; 362nd Report, Case No. 2815, para. 1370, Case No. 2797,
para. 1454; 368th Report, Case No. 2972, para. 824; and 374th Report, Case No. 3030,
para. 536; 380th Report, Case No. 3121, para. 140.)
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10. Right to strike
959. Respect for the principles of freedom of association requires that workers
should not be dismissed or refused re-employment on account of their having participated
in a strike or other industrial action. It is irrelevant for these purposes whether
the dismissal occurs during or after the strike. Logically, it should also be irrelevant
that the dismissal takes place in advance of a strike, if the purpose of the dismissal
is to impede or to penalize the exercise of the right to strike.
(See the 2006 Digest, para. 663; 362nd Report, Case No. 2815, para. 1370; and 371st Report,
Case No. 2937, para. 653.)
960. The Committee could not view with equanimity a set of legal rules which:
a) appears to treat virtually all industrial action as a breach of contract on the part
of those who participate therein;
b) makes any trade union or official thereof who instigates such breaches of contract
liable in damages for any losses incurred by the employer in consequence of their
actions; and
c) enables an employer faced with such action to obtain an injunction to prevent the
commencement (or continuation) of the unlawful conduct. The cumulative effect
of such provisions could be to deprive workers of the capacity lawfully to take
strike action to promote and defend their economic and social interests.
(See the 2006 Digest, para. 664.)
961. The announcement by the government that workers would have to do overtime
to compensate for the strike might in itself unduly influence the course of the strike.
(See the 2006 Digest, para. 665.)
962. The use of extremely serious measures, such as dismissal of workers for having
participated in a strike and refusal to re-employ them, implies a serious risk of abuse
and constitutes a violation of freedom of association.
(See the 2006 Digest, para. 666; 343rd Report, Case No. 2355, para. 477; 344th Report,
Case No. 2380, para. 197; 346th Report, Case No. 2488, para. 1331; 348th Report,
Case No. 2355, para. 311; 353rd Report, Case No. 2380, para. 269, Case No. 2619, para. 576;
357th Report, Case No. 2702, para. 162; 362nd Report, Case No. 2794, para. 1138;
365th Report, Case No. 2902, para. 1121; and 372nd Report, Case No. 3022, para. 615 and
Case No. 3011, para. 647.)
963. Should it be determined by the court or by the information gathered that any
of the workers dismissed following a strike were employed in services other than
those categorized as essential within the meaning of the collective agreement, necessary
measures should be taken to ensure that those workers are fully reinstated in
their previous positions.
(See 346th Report, Case No. 2500, para. 325.)
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180
964. Workers who are dismissed as a result of their participation in a strike should
not be deprived of their lawfully acquired retirement benefits accrued over years of
working for an enterprise.
(See 360th Report, Case No. 1914, para. 104.)
B. Cases of abuse while exercising the right to strike
965. The principles of freedom of association do not protect abuses consisting of
criminal acts while exercising the right to strike.
(See the 2006 Digest, para. 667; 343rd Report, Case No. 2472, para. 959; 344th Report,
Case No. 2465, para. 718, Case No. 2486, para. 1208; 348th Report, Case No. 2472,
para. 936; 349th Report, Case No. 2548, para. 540; 354th Report, Case No. 2668,
para. 676; 355th Report, Case No. 2602, para. 666; 356th Report, Case No. 2478, para. 956;
358th Report, Case No. 2742, para. 279; 360th Report, Case No. 2747, para. 840; 362nd
Report, Case No. 2710, para. 464, Case No. 2832, para. 1333; 368th Report, Case No. 2912,
para. 227; 371st Report, Case No. 2928, para. 314; and 374th Report, Case No. 2946,
para. 252, Case No. 3032, para. 413 and Case No. 3030, para. 536.)
966. Penal sanctions should only be imposed as regards strikes where there are violations
of strike prohibitions which are themselves in conformity with the principles
of freedom of association. All penalties in respect of illegitimate actions linked to
strikes should be proportionate to the offence or fault committed and the authorities
should not have recourse to measures of imprisonment for the mere fact of organizing
or participating in a peaceful strike.
(See the 2006 Digest, para. 668; 340th Report, Case No. 2415, para. 1259; 343rd Report,
Case No. 2472, para. 959; 346th Report, Case No. 2525, para. 1242; 348th Report,
Case No. 2472, para. 936; 351st Report, Case No. 2616, para. 1012; 355th Report,
Case No. 2659, para. 242; 356th Report, Case No. 2488, para. 146; 358th Report,
Case No. 2616, para. 66; 362nd Report, Case No. 2723, para. 842; 363rd Report,
Case No. 2602, para. 465; 365th Report, Case No. 2829, para. 577, Case No. 2723, para. 778;
and 372nd Report, Case No. 3022, para. 616.)
967. The Committee considered that some of the temporary measures taken by the
authorities as a result of a strike in an essential service (prohibition of the trade union’s
activities, cessation of the check-off of trade union dues, etc.) were contrary to
the guarantees provided for in Article 3 of Convention No. 87. The Committee drew
the Government’s attention to the fact that the measures taken by the authorities to
ensure the performance of essential services should not be out of proportion to the
ends pursued or lead to excesses.
(See the 2006 Digest, para. 669.)
968. Fines which are equivalent to a maximum amount of 500 or 1,000 minimum
wages per day of abusive strike may have an intimidating effect on trade unions and
inhibit their legitimate trade union activities, particularly where the cancellation of
a fine of this kind is subject to the provision that no further strike considered as
abusive is carried out.
(See the 2006 Digest, para. 670; and 372nd Report, Case No. 3022, para. 616.)
181
10. Right to strike
969. The Committee expects that any fines that could be imposed against trade
unions for unlawful strikes will not be of an amount that is likely to lead to the dissolution
of the union or to have an intimidating effect on trade unions and inhibit their
legitimate trade union activities, and trusts that the Government would endeavour to
resolve such situations by means of frank and genuine social dialogue.
(See 372nd Report, Case No. 3011, para. 649.)
C. In cases of peaceful strikes
970. The authorities should not resort to arrests and imprisonment in connection
with the organization of or participation in a peaceful strike; such measures entail
serious risks of abuse and are a grave threat to freedom of association.
(See the 2006 Digest, para. 671; 344th Report, Case No. 2471, para. 894; 353rd Report,
Case No. 1865, para. 728; 355th Report, Case No. 2602, para. 669; 359th Report,
Case No. 2760, para. 1172; 360th Report, Case No. 2747, para. 840; 362nd Report,
Case No. 2812, para. 395; 364th Report, Case No. 2727, para. 1083; 367th Report,
Case No. 2938, para. 227; 368th Report, Case No. 2912, para. 227; 372nd Report,
Case No. 3018, para. 494; and 378th Report, Cases Nos. 3110 and 3123, para. 625.)
971. No one should be deprived of their freedom or be subject to penal sanctions for
the mere fact of organizing or participating in a peaceful strike.
(See the 2006 Digest, para. 672; 344th Report, Case No. 2471, para. 894; 348th Report,
Case No. 2494, para. 962; 353rd Report, Case No. 1865, para. 715; 358th Report,
Case No. 2742, para. 279; 362nd Report, Case No. 2788, para. 254, Case No. 2812,
para. 395, Case No. 2741, para. 772; 363rd Report, Case No. 2854, para. 1042; 364th Report,
Case No. 2727, para. 1083; and 374th Report, Case No. 3029, para. 111.)
972. Criminal sanctions may only be imposed if during a strike violence against
persons or property or other infringements of common law are committed for which
there are provisions set out in legal instruments and which are punishable thereunder.
(See 358th Report, Case No. 2742, para. 279.)
973. The peaceful exercise of trade union rights (strike and demonstration) by
workers should not lead to arrests and deportations.
(See the 2006 Digest, para. 673; 351st Report, Case No. 2569, para. 640; and 372nd Report,
Case No. 3018, para. 494.)
974. While emphasizing the importance of conducting legitimate trade union activities
in a peaceful manner, the Committee considers that the criminalization
of industrial relations is in no way conducive to harmonious and peaceful industrial
relations.
(See 355th Report, Case No. 2602, para. 669.)
Freedom of Association – Sixth edition (2018)
182
D. Large-scale sanctions
975. Arrests and dismissals of strikers on a large scale involve a serious risk of
abuse and place freedom of association in grave jeopardy. The competent authorities
should be given appropriate instructions so as to obviate the dangers to freedom of
association that such arrests and dismissals involve.
(See the 2006 Digest, para. 674; 371st Report, Case No. 2928, para. 314; 372nd Report,
Case No. 3008, para. 244, Case No. 3018, para. 494; and 374th Report, Case No. 3032,
para. 416.)
Discrimination in favour of non-strikers
976. Concerning measures applied to compensate workers who do not participate
in a strike by bonuses, the Committee considers that such discriminatory practices
constitute a major obstacle to the right of trade unionists to organize their activities.
(See the 2006 Digest, para. 675; and 367th Report, Case No. 2977, para. 861.)
Closure of enterprises in the event of a strike
977. The closure of the enterprise in the event of a strike, as provided for in the law,
is an infringement of the freedom of work of persons not participating in a strike and
disregards the basic needs of the enterprise (maintenance of equipment, prevention
of accidents and the right of employers and managerial staff to enter the installations
of the enterprise and to exercise their activities).
(See the 2006 Digest, para. 676.)
978. The exercise of the right to strike and the occupation of the premises should
respect the right to work of non-strikers, and the right of the management to enter
its premises.
(See 356th Report, Case No. 2699, para. 1391.)
Document No. 283
Universal Declaration of Human Rights, 1948, article 20
4. Reque,t, the United Nations International
Children's Emergency Fund, as the United
Nations agency entrusted with special responsibility
for meeting emergency needs of children
in many parts oí the world :
(a) To assist in the conduct oí national cam•
pa1gns íor the benefit of the lnternational
Children's Emergency Fund, with a view to
providing international co-ordination oí voluntary
governmental and non-governmental appeals
for the benefit of children;
(.b) To report concerning the appeals to the
ninth session of the Economic and Social Council
and to the íourth regular session of the General
Assembly.
Hundred and ,eventy-seventh plmuiry meeting,
8 Deamber 1948.
216 (ffi). Advisory social welfare ser•
vices
TA. General A,,embly,
Hat·in¡¡ romiáered resolution 15 5 (VII) of the
Economic and Social Council of 13 August 1948
on advisory social welfare services,
Approve, the provisions of that resolution.
Hundred and ll8Veflty-,eventh plmuiry 11UNJtin¡¡,
8 Deamber 1948.
217 (111). lnternational Bill of Human
Rights
A
UNIVERSAL DECLARATION
OF HUMAN RIGHTS
PREAIIBLB
Wherea, recognition of the inherent dignity
and oí the equal and inalienable rights of • all
members oí the human family is the íoundation
oí freedom, justice and pcace in the world,
Whereaa disregard and contempt for human
rights have resulted in barharous acts which have
outraged the conscience of mankind, and the
advent of a world in which human beings shall
enjoy íreedom of speech and belief and freedom
from fear and want has been proclaimed as the
highest aspiration oí the common people,
Wliereas it is essential, if man is not to be compelled
to have recourse, as a last resort, to rebellion
against tyranny and oppression, that human
rights should be- protected by the rule of law,
Whereaa it is essential to promote the development
of friendly relations between nations,
71
4. Invite !e t''lndR intcmati.onal de secours a
l'enfance de l'Organiílation des Nations Unies en
sa qualité d'institution de l'Organisation dea
Nations Unies spécialernent chargée de pourvoir
aux pressants besoins des enfants dans de nombreuses
parties du monde;
a) A contribuer a l'organisation de campagnes
nationales en faveur du Fonds international de
secours a l'enfance, afin d'assurer la coordination
internationale des appels gouvernementaux et
non gouvernementaux hénévoles en fawmr de
l'enfance;
h) A faire rapport sur !es résultats des appels
a la neuvieme session du Conseil écon'lmique et
social ainsi qu'a la quatrieme session ordinaíre
de l'Assemblée générale.
Cent-soixante-Jix-s1ptil¼ne séance pléniere,
le 8 décembre 19 48.
216 (111). Fonctions consultatives en
matiere de service social
L'Assemblée générale.
Ayant examiné la résolution 155 (VII) du
Conseil économique et social, en date du 13 aodt
1948, relative aux fonctions consultatives en
matiere de service social,
Approuve les dispositions de ladite résolution.
Cent-soixante-dix-septieme séance pMniere,
le 8 dérembre 1948.
217 (111). Charle internationale de11
droits de l'homme
A
DÉCLARATION UNIVERSELLE DES DROITS
DE L'HOMME
PRÉAMBULE
Considérant que la reconnaissance <le la <lignité
inhérente a tous les membres de la famille
humaine et de leurs droits égaux et inaliénables
constitue le fondement de la liberté, de la justice
et de la paix dans le monde,
Comidérant que la méconnaissance et le mépris
des droits de l'homme ont conduit a des actes
de barbarie qui révoltent la conscience de l'humanité
et que l'avenement d'un monde ou les etres
humains seront libres de parler et de croire,
libérés de la terreur et de la misere, a été proclamé
comme la plus haute aspiration de l'homme,
Considérant qu'il est essentiel que les droits de
l'hommc soient protégés par un régime de droit
pour que l'homme ne soit pas contraint, en
supreme recours, a la révolte contre la tyrannic
et l' oppression,
Consúlérant qu'il cst essentiel <l'encourager le
développement de relations amicales entre
nations,
WAmtu the peoples o( the U nited Nations have
in the Charter reaffinned their faith in fundamental
human rights, in the dignity and worth
of the human person and in the equal rights of
men and wo~en and have determined to promote
social progress and better standards of lif e
in larger freedom,
W/i,reas Member States have pledged themselves
to achieve,in co-operation with the United
Nations, the promotion of universal respect for
and observance of human rights and fundamental
freedoms,
W.limwu a common understanding of these
rights and freedoms is of the greatest importance
for the full realization o( this pledge,
N O'l1J, therefore,
The General A,aembly
Proclaim, this Universal Declaration of Human
Rights as a common standard of achievement for
ali peoples and ali nations, to the end that every
individual and every organ of society, keeping
tlús Declaration constantly in mind, shall strive
by teacbing and education to promote respect for
these rights and freedoms and by progressive
measures, national and international, to secure
their universal and effective recognition and
observance, both among the peoples of Member
States themselves and among the peoples of
territories under their jurisdiction.
!RTICLE 1
Ali human beings are born free and equal in
dignity and rights. They are endowed with
reason and conscience and should act towards
one another in a spirit of brotherhood.
ARTICLE 2
Everyone is entitled to all the rights .and freedoms
set forth in this Declaration, without disti
nction of any kind, such as race, colour, sex,
language, religion, political or other opinion,
national or social origin, property, birth or
other status.
Furthermore, no distinction shall be made on
the basis of the political, jurisdictional or international
status of the country or territory to
which a person belongs, whether it be independeut,
trust, non-self-governing or under any
other limitation of sovereignty.
ARTICLE 3
Everyone has the right to life, liberty and the
security of person.
Coniidbant que dans la Charte les peuples des
Nations Unies ont proclamé a nouveau leur foi
dans les droits fondamentaux de l'homme, dans
la dignité et la valeur de la personne humaine,
dans l' égalité des droits des hommes et des
femmes, et qu'ils se sont déclarés résolus a favoriser
le progres social et a instaurer de meilleures
conditions de vie dans une libérté plus grande,
Considérant que les États Membres se sont
engagés a assurer, en coopération avec l'Organisation
des Nations Unies, le respect universel et
effectif des droits de l'homme et des libertés
fondamentales,
Considérant qu'une conception commune de ces
droits et libertés est de la plus haute importance
pour remplir pleinement cet engagement,
L' Asaemblée cénirale
ProclamB la· présente Déclaration universelle
des droits de l'homme comme l'idéal commun
a atteindre par tous les peuples et toutes les
nations afin que tous les, in di vid us et tous les
organes de la société, ayant cette Déclaration
constamment a l'esprit, s'efforcent, par l'enseignement
et l'éducation, de développer le respect
de ces droits et libertés et d'en assarer, par des
mesures progressives d'ordre national et international,
la reconnaissance et l'application universelles
et effectives, tant parmi les populations
des États Membres eux-mémes que parmi celles
des territoires placés sous leur juridiction.
ARTICLE PREMIER
Tous les étres humains naissent libres et
égaux en dignité et en droits. lis sont doués de
raison et de conscience et doivent agir les uns
envers les autres dans un esprit de fraternité.
72
ARTICLE 2
Chacun peut se prévaloir de tous les droits
et de toutes les libertés proclamés dans la présente
Déclaration, sans distinction aucune, notamment
de race, de couleur, de sexe, de langue,
de religion, d'opinion politique ou de toute
autre opiníon, d'origine nationale ou sociale,
de fortune, de naissance ou de toute autre
situation.
De plus, il ne sera fait aucune distinctioo
fondée sur le statut politique, juridique ou
international du pays ou du territoire dont une
personne est ressortissante, que ce pays ou
territoire soit indépendant, sous tutelle, non
autonome ou soumis a une limitation quelconque
de souveraineté.
ARTICLE 3
Tout individu a droit a la vie, a la liberté et
a la st'ireté de sa personne.
ARTICLE á
No one shall he held in slavery or servitude;
slavery and the slave trade shall he prohibited in
all their fonns.
ARTICLE 5
No one shall he subjected to torture or to
cruel, inhuman or degrading treatment or
pu nishment.
ARTICLE 6
Everyone has the right to recognition everywbere
as a person before the law.
ARTICLE 7
AH are equal before the law and are entitled
without any discrimination to equal protection
oí the law. Ali are entitled to equal protection
against any discrimination in violation of this
Declaration and against any incitement to such
discrimination.
ARTICLE 8
Everyone has the right to an effective remedy
by the competent national tribunals for acts
violating the fundamental rights granted him by
the constitution or by law.
ARTICLE 9
No one shall be subjected to arhitrary arrest,
detention or exile.
ARTICLE 1 O
Everyone is entitled in full equality to a fair
and public hearing by an independent and
impartial tribunal, in the detennination of his
rights and obligations and of any criminal charge
against him.
ARTICLE 11
1. Everyone charged with a penal offence has
the right to be presumed innocent until proved
guilty according to law in a public tria! at which
he has had ali the guarantees necessary for his
defence.
2. No one shall be held guilty of any penal
oflence on account of any act or omission which
did not constitqte a pen&.l offence, under national
or international law, at the time when it was
committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the
time the penal off ence was committed.
ARTICLE 12
No one shall be subjected to arbitrary interference
with his privacy, family, home or correspondence,
nor to attacks upon his honour and
reputation. Everyone has the right to the pro-
73
ARTICLE á
Nul ne sera tenu en esclavage ni en servitude;
l' esclavage et la traite des esclaves sont
interdits sous toutes leurs formes.
ARTICLE 5
Nul ne sera soumis a la torture, ni a des
peines ou traitements cruels, inhumains ou
dégradants.
ÁRTICLE 6
Chacun a le droit a la reconnaissance en tous
lieux de sa personnalité juridique.
ÁRTICLE 7
Tous sont égaux devant la loi et ont droit
sans distinction a une égale protection de la
loi. Tous ont droit a une protection égale contre
toute discrimination qui violerait la présente
Déclaration et contre tontP provocation a une
telle discrimination.
ARTICLE 8
Toute personne a droit a un recours effectif
devant les juridictions nationales compétentes
contre les actes violant les droits fondamentaux
qui lui sont reconnus par la constitution ou par
la loi.
ARTICLE 9
Nul ne peut ~tre arbitrairement arrété, détenu
ni exilé.
ARTICLE 1 O
Toute personne a droit, en pleine égalité,
a ce que sa cause soit entendue équitablement
et publiquement par un tribunal indépendant
et impartial, qui décidera. soit de ses droits et
obligations, soit du bien fondé de toute accusation
en matiere pénale dirigée contre elle.
ARTICLE 11
1. Toute personne accusée d'un acte délictueux
est présumée innocente jusqu'a ce que
sa culpabilité ait été légalement établie au cours
d'un proces jmblic ou toutes les garanties nécessaires
a sa défense luí auront été assurées.
2. Nul ne sera condamné pour des actions
ou omissions qui, au moment ou elles ont été
commises, ne constituaient pas un acte délictueux
d'apres le droit national ou international.
De méme, il ne sera infligé aucune peine plus
forte que celle qui était applicable au mement
ou l' acte délictueux a été commis.
AnricLB 12
Nul ne sera l'objet d'immixtions arbitraires
dans sa vie privée, sa famille, son domicile ou sa
correspondance, ni d'atteintes a son honneur
et a sa réputation. Toute personne a droit a la
tection of the law against such interference or
attacks.
ARTICLE 13
1. Everyone has the right to freedom of movenent
and residence within the borders of each
State.
2. Everyone has the right to leave any country,
inclnding his own, and to return to his country.
ARTICLE 14
1. Everyone has the right to seck and to enjoy
in other countries asylum from persecution.
2. This right may not be invoked in the case
of prosecutions genuinely arising from nonpolitical
crimes or from acts contrary to the purposes
and principies of the United Nations.
ARTICLE 15
1. Everyone has the right to a nationality.
2. No one shall he arbitrarily deprived of his
nationality nor denied the right to change his
nationality.
ARTICLE 16
1. Men and women of full age, without any
limitation due to race, nationality or religion,
have the right to marry and to found a family.
They are entitled to equal rights as to marriage,
during marriage and at its dissolution.
2. Marriage shall be entered into only witb.
the free and full consent of the intending spouses.
3. The family is the natural and fundamental
group unit of society and is entitled to protection
by society and the State.
ARTICLE 17
1. Everyone has the right to own property
alone as well as in association with · others.
2. No one shall be arbitrarily deprived of his
property.
ÁRTICLE 18
Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom
to change bis religion or belief, and freedom,
either alone or in community with others
and in public or prívate, to manifest his religion
or belief in teaching, practice, worship and ohservance.
ARTICLE 19
'Everyone has the right to freedom of opinion
and expression; this right includes freedom to
7{!
protection de la loi contre de telles immixtions
ou de telles atteintes.
ARTICLE 13
1. Toute personne a le droit de circuler
librement et de choisir sa résidence a l'intérieur
cl'un État.
2. Toute personne a le droit de quitter tout
pays, y compris le sien, et de revenir dans son
pays.
ARTICLE 1 li
1. Devant la persécution, toute personne a
le droit de cherchcr asile et de bénéficier de
l' asile en d' autres pays.
2. Ce droit ne pcut étre invoqué dans le cas
de poursuites réellement fondées sur un crime
de droit commun ou sur des agissements contraires
aux buts et aux principes des Nations
Unies.
ARTICLE 15
1. Tout individu a droit a une nationalité.
2. Nul ne peut étre arbitrairement privé de
sa nationalité, ni du droit de changer de nationalité.
ARTICLE 16
1. A partir <le l'áge nuhile, l'homme et la
femme, sans aucune restriction quant a la race,
la nationalité ou la religion, ont le droit de se
marier et de fonder une famille. Ils ont des
droits égaux au regard du mariage, durant le
mariage et lors de sa dissolution.
2. Le mariage ne peut étre conclu qu' avec le
libre et plein consentement des futurs époux.
3. La famille est l' elément naturel et fondamental
de la sociét~ et a droit a la protection de
la société et de l'Etat.
ARTICLE 17
1. Toute personne, aussi bien seule qu'en
collectivité, a droit a la propriété.
2. Nul ne peut étre arbitrairement privé de
sa propriété.
ARTICLE 18
Toute personne a droit a la liberté de pensée,
de conscience et de religion; ce droit implique
la liberté de changer de religion ou de conviction
ainsi que la liberté de manifester sa religion ou
sa conviction, seule ou en commwi, tant en
public qu' en privé, par l' enseignement, les
pratiques, le culte et l' accomplissement des
rites.
ABTICLE 19
Tout individu a droit a la liberté d'opinion
et d'expression, ce qui implique le droit de ne
hold opinions without interference and to seek,
receive and impart informati,on and ideas
through any media and regardless of frontiers.
ARTICLE 20
1. Everyone has the right to freedom of
peaceful assemhly and association.
2. No one may be compelled to belong to an
association.
ARTICLE: 21
1. Everyone has the right to take part in the
government of his country, directly or through
freely chosen representatives.
2. Everyone has the right of equal access to
public service in his country.
3. The will of the people shall be the basis of
the authority of government; this will shaH be
expressed in periodic and genuine elections
which shall be by universal and equal suffrage
aml shall be held by secret vote or by equivalent
frc1' voting procedures.
ARTICLE 22
Everyonc, as a mcmber of society, has the
right to social security and is entitled to realizati
on, through national effort and international
co-operation and in accordance with the organization
and resources of each State, of the economi1:,
social and cultural rights indispensable for
his dignity and the free development of his
personality.
ÁRTICLE 23
1. Everyone has the right to work, to free
choice of employment, to just and favourahle
conditions of work and to protection against
unemployment.
2. Everyone, without any discriinination, has
the right to equal pay for equal work.
3. Everyone who works has the right to just
and favourable remuneration ensuring for himself
and his family an existence worthy of human
dignity, and supplemented, if necessary, by other
means of social prntection.
4. Everyone has the right to forro and to join
trade unions for the protection of his interests.
ARTICLE 24
Everyone has the right to rest and leisure,
including reasonable liinitation of working hours
and periodic holidays with pay.
75
pas étre inquiété pour ses opinions et celui de
chercher, de recevoir et de répandre, sans considérations
de frontieres, les informations et les
idées par quelque moyen d' expression que ce
soit.
ÁRTICLE 20
1. Toute personne a droit a la liberté de
réunion et d'association pacifiques.
2. Nul ne peut étre obligé de faire partie
d'une association.
ÁRTICLE 21
1. Toute personne a le droit de prendre part
a la direction des affaires publiques de son pays,
soit directement, soit par l' intermédiaire de
représentants librement choisis.
2. Toute personne a droit a accéder, dans des
conditions d' égalité, aux fonctions publiques
<le son pays.
3. La volonté du peuple est le fondement de
l' autorité des pouvoirs publics; cette volonté
doit s' exprimer par des élections honnétes qui
doivent avoir lieu périodiquement, au suffrage
universel égal et au vote secret ou suivant une
procédure équivalente assurant la liberté du
vote.
ARTICLE 22
Toute personoe, en tant que membre de la
société, a droit a la sécurité sociale; elle est
fondée a obtenir la satisfaction dei droits économiques,
sociaux et culturels indispensables
a sa dignité et au libre développement de sa
personnalité, grace a l' effort national et a la
coopération internationale, compte tenu de
l' organisation et des ressourccs de chaque pays.
ARTICLE 2 3
1. Toute personne a droit au travail, au libre
choix de son travail, a des conditions équitables
et satisfaisantes de travnil f'l a la protection
contre le chomage.
2. Tous ont droit, sans nucune discrimination,
a un snlaire égal pour un travail égal.
3. Quiconque travaille a droit a une rémunération
équitable et satisfaisante lui assurant
ainsi qu'a sn famille une existence conforme a
la dignité humaine et compldée, s'il y a lien,
par tous autres moyens de protection sociale.
4. Toute personne a le droit de fonder avec
d 'autres des syndicats et de s' affilier a des syndirats
pour la défense de ses intérMs.
ARTICLE 2 !i
Toute personne a droit au repos et aux loisirs
et notamment a une limitation raisonnable de
la durée du travail et a des congés payés périodiques.
ARTICLE 25
1. Everyone has the right to a standard of
living adequate for the health and well-being of
himself and of his farnily, including food, clothing,
housing and medical care and necessary
social services, and the right to security in the
event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood
in circumstances beyond his control.
2. Motherhood and childhood are entitled
to special care and assistance. AH children,
whether born in or out of wedlock, shall enjoy
the same social protection.
ARTICLE 26
1. Everyone has the right to education.
Education shall be free, at lcast in the elementary
and fundamental stages. Elementary cducation
shall be compulsory. Technical and professional
education shall be made generally available and
higher education shall be equally aecrssible to
ali on the basis of mcrit.
2. Education shall he dirccted to the full
devclopment of the human personality and to
the strengthening of respect for human rights
and fundamental freedoms. It shall promote
understanding, tolerance and friendship among
all nations, racial or religious groups, and shall
further the activities of the United Nations for
the maintenance of peace.
3. Parents have a prior right to choose the
kind of education that shall be given to their
children.
ARTICLE 27
1. Everyone has the right freely to participate
in the cultural life of the community, to enjoy
the arts and to share in scientific advancement
and its benefits.
2. Everyonc has the right to the protection
of the moral and material interests resulting
frorn any scientific, literary or artistic production
of which he is the author.
ARTICLE 28
Everyone is cntitled to a social and international
order in which the rights and freedoms
set forth in this Dcclaration can be fully realized.
ARTICLE 29
1. Everyone has duties to the comrnunity
in which alone the free and full development
of his personality is possible.
ARTICLE 25
1. Toute personne a droit a un niveau de vie
suffisant pour assurer sa santé, son bien-~tre
et ceux de sa famille, notamment pour l'alimentation,
l'habillement, le logement, les soins
médicaux ainsi que pour les services sociaux
nécessaires; elle a droit a la sécurité en cas de
chómage, de maladie, d'invalidité, de veuvage, de
vieillesse ou dans les auttes cas de perte de ses
moyens de suhsist.ance par suite de circonstances
indépendantes de sa volonté.
76
2. La maternité et l'enfance ont droit a une
aide et a une assistance spéciales. Tous les
cnfants, qu'ils soient nés dans le mariage ou
hors mariage, jouissent de la méme protection
sociale.
ARTICLE 26
1. Toute personne a droit a l'éducation.
L' éducation doit Mre gratuite, au moins en ce qui
concerne l' enseignement élémentaire et fondamental.
L'enseignement élémentaire est obligatoire.
L' enseignement technique et professionnel
doit Mre généralisé; l' acces aux études
supérieures doit étre ouvert en pleine égalité
a tous en fonction de leur mérite.
2. L'éducation doit viser au plein épanouissement
de la personnalité humain_e et au rcnforcement
du respect des droits de l'homme et des
libcrtés fondamentales. Elle doit favoriser la
compréhension, la tolérance et l'amitié entre
toutes les nations et tous les groupes raciaux ou
rcligieux, ainsi que le développement des activit_
és des Nations Unies pour le maintien de la
paix.
3. Les parents ont, par priorité, le droit de
choisir le genre d'éducation a donner a leurs
rnfants.
ARTICLE 27
1. Toute personne a le droit de prendre part
librement a la vie culturelle de la communauté,
de jouir des arts et de participer au progres
scientifique et aux bienfaits qui en résultent.
2. Chacun a droit a la protection des intéréts
moraux et matériels découlant de toute production
scientifique, littéraire ou artistique dont il
est l'auteur.
ARTICLE 28
Toute personne a droit a ce que regnc. "nr
le plan social et sur le plan international. un
ordre tel que les droits et libertés énoncés dans
la présente Déclaration puissent y trouvrr plein
pffd.
ARTICLE 29
1. L'individu a des devoirs envers la communauté
dans laquelle seule le libre rt plein développement
de sa personnalité est possible.
2. In the exercise of his rights and freedoms,
everyone shall be subject only to such limitations
as are determined by law solely for the purpose
of securing due recognition and respect for the
rights and freedoms of others and of meeting
the just requirements of morality, public order
and the general welfare in a democratic society.
3. These rights and freedoms may in no case
be exercised contrary to the purposes and principies
of the United Nations.
ÁRTICLE 30
Nothing in this Declaration may be interpreted
as implying for any State, group or person any
right to engage in any activity or to perform
any act aimed at the destruction of any of the
rights and freed~ms set forth herein.
Humlred m11l r1ght.'l-thinl pll'l1ar:¡ 11uwting.
10 h1•cemlwr 19 4 8.
B
RIGHT OF PETITION
The General Assembly,
Considering that the right of petitwn is an
essential human right, as is recognized in the
Constitutions of a great number of countries,
Having considered the draft article on petitions
in document A/C.3/306 and the amendments
offered thereto by Cuba and France,
Decides not to take any action on this matter
at the present session;
Requests the Economic and Social Council to
ask the Commission on Human Rights to give
further examination to 'the problem of petitions
when studying the draft covenant on human
rights and measures of implementation, in
order to enable the General Assembly to consider
what further action, if any, should be taken at
its next regular session regarding the problem
of petitions.
Hundred and eight,9-thii·d plenar.,¡ meeting,
10 Dmmber 1948.
e
FATE OF MINORITIES
The General Assembly,
Considering that the United Nations cannot
remain indifferent to the fate of minorities,
Considering that it is difficult to adopt a
uniform solution of this complex and delicate
question, which has special aspects in · each
State in which it arises,
77
2. Dans l'exercice de ses droits et dans la
jouissance de ses libertés, chacun n' est soumis
qu'aux limitations établies par la loi exclusivement
en vue d'assurer la reconnaissance et le
respect des droits et libertés d' autrui et afin
de satisfaire aux justes exigences de la morale,
de l'ordre public et du bien~tre général dans
une société démocratique.
3. Ces droits et libertés ne pourront, en
aucun cas, s'exercer contrairement aux buts
et aux principes des Nations Unies.
ÁRTICLE 30
Aucune disposition de la présente Déclaration
ne peut étre interprétée comme impliquant
pour un État, un groupement ou un individu
un droit quelconque de se livrer a une activité
ou d'accomplir un acte visant a la destruction
des droits et libertés qui y sont éñoncés.
Cent-qw1trr-1•i11gt-t,·ois1'ili11e :té,mce pl,imere.
ft. 1 O déceml,re 1948.
B
DROIT DE n:TITION
L'Assembwe générale,
Considérant que le droit de pétition est un des
droits essentiels de l'homme, comme le reconnaissent
les constitutions de nombreux pays,
Ayant examiné le projet d'article relatif aux
pétitions qui figure dans le document A/C.3/306
et les amendements a cet article déposés par
Cuba et la France,
Décide de ne prendre aucune mesure a ce sujet
au cours de la présente session;
Prie le Conseil économique et social d'inviter
la Commission des droits de l'homme a procéder
a un nouvel examen du probleme des pétitions
lorsqu' elle examincra le projet de pacte relatif
aux droits de l'homme et aux mesures de mise
en reuvre, afin que l'Assemblée générale puisse,
au cours de sa prochaine session ordinaire,
examiner quelles mesures doivent étre prises,
s' il y a lieu d' en prendre, en ce qui concerne le
probleme des pétitions.
Cent-quatrc-vingt-troisieme séance plé11iere.
le 10 décembre 1948
G
SORT DES MINORITÉS
L' Auemblée générale,
Comidérant que les Nations Unies ne peuvent
pas demeurer indifférentes au sort des minorités,
Considérant qu'il est difficile d'adopter une
soluti?n unif?rme de cette question complexe
et déhcate qm revét des aspects particuliPrs dam
chaque État ou elle se e._ose,
Consideríng the universal character 01 tne
Declaration of Human Rights,
Decides not to deal in a specitic provision with
the question of minorities in the text of this
Declaration;
Refers to the Economic and Social Council the
texts submitted by the delegations of the Union
of Soviet Socialist Republics, Yugosiavia and
Denmark on this subject ·contained in <locument
A/C. 3/307 /Rev. 2, and requests the Council 1
to ask the Commission on Human Rights and
the Sub-Commission on thc Prevcntion of
Discrimination and thc Protection of Minorities
to make a thorough study of the prohlem of
minoritie:,;, in urder that the United Nations
may be able to take effoctivc mcasures for the
pro'tection of racial, nationd, rcligious or linguistir,
minorities.
flw,dr,·i! and 1•1gl11_1¡-tl11nl ¡deuai·y me1•ting.
l 1, /)¡,uw!wr 1.9.1¡8_
D
PUBLIC!TY TO BE GTVEN TO THE UNIv
ERSAL DECLARAT!ON OF HUMAN RIGHTS
Th.e General Assembly,
Considering that the adoption uf the Universal
Dedaration of Human llights is an historie act,
destiued to consolidatc world peace through the
contribution of the United Nations towards the
liberation of rndividuals frnm the nnjustified
oppression and coustraint to whidi they are
too often subjecte1l,
Considering that the text of the Declaration
should be disseminated among all peoples
throughout the world,
l. Recornmends Governments of Membcr States
to show their adherence to Article 56 of the
Cherter by using every mean¡¡ within their power
solemnly to publicize the text of the Declaration
and to cause it to be disseminated, displayed,
read and expounded principally in schools and
other educational institutions, without distinction
based on th,~ political :.;tatus of countries or
territories;
2. Requests the Secretary-General to have
this Declaration widely disseminated and, to that
end, to puhlish and distribute texts, not only in
the official 1:rnguages, but also, using every
mea ns at bis disposal, in ali languages possible;
3. Invites thc specialized agencies and nongovernmental
or¡,;anizatio:r:s of the world to do
their utrr10st to bring this Dtclaration to the
a fontion of thi•ir members.
llu111/r1•,Í 1111d mght!¡-tl,zrd ¡den11rJ meeting.
1 fJ n-cember 19 !,R.
78
Considérant le caractere universel de la Déclaration
des droits de l'homme,
Décide de ne pas traiter par une disposition
spécifique dans le corps de cette Déclaration la
question des minorités;
Renvoie au Conseil économique et social les
textes soumis par les délégations de l'Union des
Républiques sociafütes soviétiques, de la Yougoslavie
et du Danemark sur cette question dans le
docum,mt A/C.3/307/Rev. 2, et prie le Conseil
d' invitn la Commission des droits de l'homme et
la Sous-Commission <le la lutte contre les mesures
discriminatoires et de la protection des minorités
a procéder a un examen approfondi du
probleme des minorités, afin que l'Organisation
des Nations Unies puisse adopter des mesures
dficacrs <le protection des minorités raciaies,
nationales, religieust>s et linguistiques.
Cent-g11atre-1·ingt-troisihnR séance pléni·ere,
le 10 décemhre 19!,8.
D
PUBLICITÉ 1\ DONNER Á LA DÉCLARATION
U NIVERSELLE DES DROITS DE L'HOMME
L' Assemblée générale,
Considérant que le vote de la Déclaration universelle
des droits de l'homme est un acte
historique, destiné a affermir la paix. mondiale
en faisant contribuer l'Organisation des Nations
Unies a libérer l' individu de l' oppression et
des contraintes illégitimes dont il est trop souvent
victime,
Considérant que le texte de la Déclaration doit
avoir une <liffusion de caractere vraiment populaire
et universel,
1. Recommande aux Gouvernements des États
Membres de manifester leur fülélité a l'Article 56
de la Charte, en ne négligeant aucun des moyens
en leur pouvoir pour publier solennellement le
texte de la Déclaration et, ensuite, pour faire en
sorte qu' il soit distribué, affiché, lu et commenté
principalement dans les écoles et autres établissements
d' enseignement, sans distinction fondée
sur le statut politique des pays ou des territoires;
2. Prie le Secrétaire général de donner a cette
Déclaration une tres large diffusion P-t, a ces
fins, de publier et faire distribuer les textes non
seulement dans les langues officielles, mais
encore, dans la mesure de ses moyens, dans
toutcs IPs langues possibles;
3. Invite les institutions spécialisées et les
organisations non gouvernementales du monde
a bien vouloir faire leur possible pour porter
cette Déclaration a la eonnaissance de leurs
membres.
Ci•11t-yuatre-ringt-troisie111e séance pléniere,
le 10 décembre 1948.
f
PREPARATION OF A DRAFT COVENANT ON
HUMAN RIGHTS AND DRAFT MEASURES
OF IMPLEMENTATIOI\'
The General Assembly,
Considering that the plan of work of the
Commission on Human Rights provides for an
lnternational Bill of Human Rights, to include
a Declaration, a Covenant on Human Rights
and measures of implementation,
Requests the Economic and Social Council to
ask the Commission on Human Rights to continue
to give priority in its work to the preparation
of a draft Covenant on Human Rights
and draft measures of implementation.
Hurulred arul eighty-third plenary meeting,
1 O December 1948.
79
E
PREPARATION D'LN PROJET DE PACTE
RELATIF AUX DROITS DE L'HOMME ET
DE MESURES DE MISE EN OOUVRE
L · Assemblée générale,
Considérant que le plan <le travail de la Commission
des droits de l'hommc prévoit l' élaboration
d'une rharte intcrnationale des droits de
l'homme, qui devra comprendre une Déclaration,
un Pact1) relatif aux clroits de l'homme d des
mesures de mise en Leuvn';
lnv,ite le Conseil économique et social a demander
a la Commission des droits de l'homme de
continuer a donner la priorité, <lans son plan
de travail, a la préparation d'un projet de pacte.
relatif aux droits de l'homm!' et a l' élaboration
des mesures ele mise en o.mvre.
Cent-quatre-1,ingt-troisieme séance pléniere,
le 10 décembre 1948.
Document No. 284
International Covenant on Economic, Social and
Cultural Rights, 1966, article 8
INTERNATIONAL COVENANT
ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
UNITED NATIONS
1967
(i) Pair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed
conditions of work not inferior to those enjoyed by men, with
equal pay for equal work;
(ii) A decent living for themselves and their families in accordance
with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(£) Equal opportunity for everyone to be promoted in his employment to an
appropriate higher level, subject to no considerations other than those of
seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic
holidays with pay, as well as remuneration for public holidays.
Article 8
1, The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union
of his choice, subject only to the rules of the organization concerned, for the
promotion and protection of his economic and social interests. No restrictions
ney be placed on the exercise of this right other than those prescribed by law
and which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedoms of
others;
(b) The right of trade unions to establish national federations or
confederations and the right of the latter to form or join international
trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations
other than those prescribed by law and which are necessary in a democratic
society in the interests of national security or public order or for the
protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with
the laws of the particular country.
2. This article shall not prevent the imposition of lawful restrictions on
the exercise of these rights by menbers of the armed forces or of the police or
of the administration of the State.
5. Nothing in this article shall authorize States Parties to the
International Labour Organisation Convention of 19^ concerning Freedom of
Association and Protection of the Right to Organize to take legislative measures
which would prejudice, or apply the law in such a manner as would prejudice,
the guarantees provided for in that Convention.
Article 9
The States Parties to the present Covenant recognize the right of everyone
to social security, including social insurance.
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the
family, which is the natural and fundamental group unit of society, particularly
for its establishment and while it is responsible for the care and education of
dependent children. Marriage must be entered into with the free consent of the
intending spouses.
2. Special protection should be accorded to mothers during a reasonable
period before and after childbirth. During such period working mothers should
be accorded paid leave or leave with adequate social security benefits.
5. Special measures of protection and assistance should be taken on behalf
of all children and young persons without any discrimination for reasons of
parentage or other conditions. Children and young persons should be protected
from economic and social exploitation. Their employment in work harmful to
their morals or health or dangerous to life or likely to hamper their normal
development should be punishable by law. States should also set age limits below
which the paid employment of child labour should be prohibited and punishable
\?y law.
Document No. 285
International Covenant on Civil and Political Rights,
1966, article 22
INTERNATIONAL COVENANT
ON CIVIL
AND POLITICAL RIGHTS
V NIT ED NATIONS
1967
5. The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be subject
to certain restrictions, but these shall only be such as are provided by law and
are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public),
or of public health or morals.
Article 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence shall be prohibited by law.
Article 21
The right of peaceful assembly shall be recognized. No restrictions may be
placed on the exercise of this right other than those imposed in conformity with
the law and which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others.
Article 22
1. Everyone shall have the right to freedom of association with others,
including the right to form and Join trade unions for the protection of his
interests.
2. No restrictions may be placed on the exercise of this right other than
those which are prescribed by law and which are necessary in a democratic society in
the interests of national security or public safety, public order (ordre public),
the protection of public health or morals or the protection of the rights and
freedoms of others. This article shall not prevent the imposition of lawful
restrictions on members of the armed forces and of the police in their exercise
of this right.
5. Nothing in this article shall authorize States Parties to the
International Labour Organisation Convention of concerning Freedom of
Association and Protection of the Right to Organize to take legislative measures
which would prejudice, or to apply the law in such a manner as to prejudice, the
guarantees provided for in that Convention.
Article 23
1. The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a
family shall be recognized.
5, No marriage shall be entered into without the free and full consent of
the intending spouses.
k. States Parties to the present Covenant shall take appropriate steps to
ensure equality of rights and responsibilities of spouses as to marriage, during
marriage and at its dissolution. In the case of dissolution, provision shall be
made for the necessary protection of any children.
Article 2h
1, Every child shall have, without any discrimination as to race, colour,
sex, language, religion, national or social origin, property or biirth, the right
to such measures of protection as axe required by his status as a minor, on the
part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have
a name.
5. Every child has the right to acquire a nationality.
Article 25
Evesry citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
Document No. 286
Convention for the Protection of Human Rights and
Fundamental Freedoms, 1950, article 11
No. 2889
BELGIUM, DENMARK, FRANCE,
FEDERAL REPUBLIC OF GERMANY, ICELAND, etc.
Convention for the Protection of Human Rights and Fun
damental Freedoms. Signed at Rome, on 4 November
1950
Protocol to the above-mentioned Convention. Signed at
Paris, on 20 March 1952
Official texts: English and French.
Registered on 11 August 1955 by the Council of Europe acting on behalf of the-
Contracting Parties in accordance with Resolution (54) 6 of the Committee
of Ministers of the Council of Europe adopted on 3 April 1954.
BELGIQUE, DANEMARK, FRANCE,
RÉPUBLIQUE FÉDÉRALE D'ALLEMAGNE, ISLANDE, etc.
Convention de sauvegarde des droits de l'homme et des
libertés fondamentales. Signée à Rome, le 4 novembre
1950
Protocole additionnel à la Convention susmentionnée.
Signé à Paris, le 20 mars 1952
Textes officiels anglais et français.
Enregistrés le 11 août 1955 par le Conseil de l'Europe agissant au nom des parties
contractantes conformément à la résolution (54) 6 adoptée le 3 avril 1954 par
le Comité des Ministres du Conseil de l'Europe.
232 United Nations Treaty Series 1955
Article 11
(1) Everyone has the right to freedom of peaceful assembly and to free
dom of association with others, including the right to form and to join trade
unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other
than such as are prescribed by law and are necessary in a democratic society
in the interests of national security or public safety, for the prevention of disor
der or crime, for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the imposition
of lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the State.
Article 12
Men and women of marriageable age have the right to marry and to found
a family, according to the national laws governing the exercise of this right.
Article 13
Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority notwithstand
ing that the violation has been committed by persons acting in an official capacity.
Article 14
The enjoyment of rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin, associa
tion with a national minority, property, birth or other status.
Article 15
(1) In time of war or other public emergency threatening the life of the
nation any High Contracting Party may take measures derogating from its
obligations under this Convention to the extent strictly required by the exigen
cies of the situation, provided that such measures are not inconsistent with its
other obligations under international law.
(2) No derogation from Article 2, except in respect of deaths resulting
from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made
under this provision.
No. 2889 »
Document No. 287
European Social Charter (Revised), 1996, article 6
European Treaty Series - No. 163
European Social Charter (Revised)
Strasbourg, 3.V.1996
Preamble
The governments signatory hereto, being members of the Council of Europe,
Considering that the aim of the Council of Europe is the achievement of greater unity between
its members for the purpose of safeguarding and realising the ideals and principles which are
their common heritage and of facilitating their economic and social progress, in particular by
the maintenance and further realisation of human rights and fundamental freedoms;
Considering that in the Convention for the Protection of Human Rights and Fundamental
Freedoms signed at Rome on 4 November 1950, and the Protocols thereto, the member
States of the Council of Europe agreed to secure to their populations the civil and political
rights and freedoms therein specified;
Considering that in the European Social Charter opened for signature in Turin on 18 October
1961 and the Protocols thereto, the member States of the Council of Europe agreed to secure
to their populations the social rights specified therein in order to improve their standard of
living and their social well-being;
Recalling that the Ministerial Conference on Human Rights held in Rome on 5 November
1990 stressed the need, on the one hand, to preserve the indivisible nature of all human
rights, be they civil, political, economic, social or cultural and, on the other hand, to give the
European Social Charter fresh impetus;
Resolved, as was decided during the Ministerial Conference held in Turin on 21 and
22 October 1991, to update and adapt the substantive contents of the Charter in order to take
account in particular of the fundamental social changes which have occurred since the text
was adopted;
Recognising the advantage of embodying in a Revised Charter, designed progressively to
take the place of the European Social Charter, the rights guaranteed by the Charter as
amended, the rights guaranteed by the Additional Protocol of 1988 and to add new rights,
Have agreed as follows:
Part I
The Parties accept as the aim of their policy, to be pursued by all appropriate means both
national and international in character, the attainment of conditions in which the following
rights and principles may be effectively realised:
1 Everyone shall have the opportunity to earn his living in an occupation freely entered upon.
ETS 163 – European Social Charter (Revised), 03.V.1996
__________________________________________________________________________________
5
Article 5 – The right to organise
With a view to ensuring or promoting the freedom of workers and employers to form local,
national or international organisations for the protection of their economic and social interests
and to join those organisations, the Parties undertake that national law shall not be such as to
impair, nor shall it be so applied as to impair, this freedom. The extent to which the
guarantees provided for in this article shall apply to the police shall be determined by national
laws or regulations. The principle governing the application to the members of the armed
forces of these guarantees and the extent to which they shall apply to persons in this category
shall equally be determined by national laws or regulations.
Article 6 – The right to bargain collectively
With a view to ensuring the effective exercise of the right to bargain collectively, the Parties
undertake:
1 to promote joint consultation between workers and employers;
2 to promote, where necessary and appropriate, machinery for voluntary negotiations between
employers or employers' organisations and workers' organisations, with a view to the
regulation of terms and conditions of employment by means of collective agreements;
3 to promote the establishment and use of appropriate machinery for conciliation and voluntary
arbitration for the settlement of labour disputes;
and recognise:
4 the right of workers and employers to collective action in cases of conflicts of interest,
including the right to strike, subject to obligations that might arise out of collective agreements
previously entered into.
Article 7 – The right of children and young persons to protection
With a view to ensuring the effective exercise of the right of children and young persons to
protection, the Parties undertake:
1 to provide that the minimum age of admission to employment shall be 15 years, subject to
exceptions for children employed in prescribed light work without harm to their health, morals
or education;
2 to provide that the minimum age of admission to employment shall be 18 years with respect to
prescribed occupations regarded as dangerous or unhealthy;
3 to provide that persons who are still subject to compulsory education shall not be employed in
such work as would deprive them of the full benefit of their education;
4 to provide that the working hours of persons under 18 years of age shall be limited in
accordance with the needs of their development, and particularly with their need for vocational
training;
5 to recognise the right of young workers and apprentices to a fair wage or other appropriate
allowances;
6 to provide that the time spent by young persons in vocational training during the normal
working hours with the consent of the employer shall be treated as forming part of the working
day;
Document No. 288
Charter of Fundamental Rights of the European
Union, 2000, article 28
CHARTER OF FUNDAMENTAL RIGHTS OF THE
EUROPEAN UNION
(2012/C 326/02)
26.10.2012 EN Official Journal of the European Union C 326/391
Article 26
Integration of persons with disabilities
The Union recognises and respects the right of persons with disabilities to benefit from measures
designed to ensure their independence, social and occupational integration and participation in the
life of the community.
TITLE IV
SOLIDARITY
Article 27
Workers' right to information and consultation within the undertaking
Workers or their representatives must, at the appropriate levels, be guaranteed information and
consultation in good time in the cases and under the conditions provided for by Union law and
national laws and practices.
Article 28
Right of collective bargaining and action
Workers and employers, or their respective organisations, have, in accordance with Union law and
national laws and practices, the right to negotiate and conclude collective agreements at the appropriate
levels and, in cases of conflicts of interest, to take collective action to defend their interests,
including strike action.
Article 29
Right of access to placement services
Everyone has the right of access to a free placement service.
Article 30
Protection in the event of unjustified dismissal
Every worker has the right to protection against unjustified dismissal, in accordance with Union law
and national laws and practices.
Article 31
Fair and just working conditions
1. Every worker has the right to working conditions which respect his or her health, safety and
dignity.
2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest
periods and to an annual period of paid leave.
26.10.2012 EN Official Journal of the European Union C 326/401
Document No. 289
American Convention on Human Rights, 1969, article 16
No. 17955
MULTILATERAL
American Convention on Human Rights: "Pact of San José,
Costa Rica". Signed at San José, Costa Rica, on 22 No
vember 1969
Authentic texts: Spanish, English, Portuguese and French.
Registered by the Organization of American States on 27 August 1979.
MULTILATÉRAL
Convention américaine relative aux droits de l'homme :
« Pacte de San José de Costa Rica ». Signée à San José
(Costa Rica) le 22 novembre 1969
Textes authentiques : espagnol, anglais, portugais et français.
Enregistrée par l'Organisation des États américains le 27 août 1979.
Vol. 1144. I-I7955
1979 United Nations — Treaty Series • Nations Unies — Recueil des Traités 149
frontiers, either orally, in writing, in print, in the form of art, or through any
other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall
not be subject to prior censorship but shall be subject to subsequent imposition
of liability, which shall be expressly established by law to the extent necessary
to ensure:
a. Respect for the rights or reputations of others; or
b. The protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or
means, such as the abuse of government or private controls over newsprint,
radio broadcasting frequencies, or equipment used in the dissemination of
information, or by any other means tending to impede the communication and
circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertain
ments may be subject by law to prior censorship for the sole purpose of regulating
access to them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or
religious hatred that constitute incitements to lawless violence or to any other
similar illegal action against any person or group of persons on any grounds
including those of race, color, religion, language, or national origin shall be
considered as offenses punishable by law.
Article 14. RIGHT OF REPLY. 1. Anyone injured by inaccurate or offen
sive statements or ideas disseminated to the public in general by a legally regulated
medium of communication has the right to reply or to make a correction using
the same communications outlet, under such conditions as the law may establish.
2. The correction or reply shall not in any case remit other legal liabilities
that may have been incurred.
3. For the effective protection of honor and reputation, every publisher,
and every newspaper, motion picture, radio, and television company, shall have
a person responsible who is not protected by immunities or special privileges.
Article 15. RIGHT OF ASSEMBLY. The right of peaceful assembly, without
arms, is recognized. No restrictions may be placed on the exercise of this right
other than those imposed in conformity with the law and necessary in a demo
cratic society in the interest of national security, public safety or public order, or
to protect public health or morals or the rights or freedoms of others.
Article 16. FREEDOM OF ASSOCIATION. 1. Everyone has the right to
associate freely for ideological, religious, political, economic, labor, social,
cultural, sports, or other purposes.
2. The exercise of this right shall be subject only to such restrictions
established by law as may be necessary in a democratic society, in the interest
of national security, public safety or public order, or to protect public health or
morals or the rights and freedoms of others.
3. The provisions of this article do not bar the imposition of legal restric
tions, including even deprivation of the exercise of the right of association, on
members of the armed forces and the police.
Vol. 1144,1-17955
Document No. 290
Additional Protocol to the American Convention on
Human Rights in the area of Economic, Social
and Cultural Rights, 1988, article 8
ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN
RIGHTS IN THE AREA OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
"PROTOCOL OF SAN SALVADOR"
(Adopted at San Salvador, El Salvador on November 17, 1988, at
the eighteenth regular session of the General Assembly)
Preamble
The States Parties to the American Convention on Human Rights "Pact San José, Costa Rica,"
Reaffirming their intention to consolidate in this hemisphere, within the framework of
democratic institutions, a system of personal liberty and social justice based on respect for the essential
rights of man;
Recognizing that the essential rights of man are not derived from one's being a national of a
certain State, but are based upon attributes of the human person, for which reason they merit
international protection in the form of a convention reinforcing or complementing the protection
provided by the domestic law of the American States;
Considering the close relationship that exists between economic, social and cultural rights,
and civil and political rights, in that the different categories of rights constitute an indivisible whole
based on the recognition of the dignity of the human person, for which reason both require permanent
protection and promotion if they are to be fully realized, and the violation of some rights in favor of the
realization of others can never be justified;
Recognizing the benefits that stem from the promotion and development of cooperation
among States and international relations;
Recalling that, in accordance with the Universal Declaration of Human Rights and the
American Convention on Human Rights, the ideal of free human beings enjoying freedom from fear and
want can only be achieved if conditions are created whereby everyone may enjoy his economic, social
and cultural rights as well as his civil and political rights;
Bearing in mind that, although fundamental economic, social and cultural rights have been
recognized in earlier international instruments of both world and regional scope, it is essential that
those rights be reaffirmed, developed, perfected and protected in order to consolidate in America, on
the basis of full respect for the rights of the individual, the democratic representative form of
government as well as the right of its peoples to development, self‐determination, and the free disposal
of their wealth and natural resources; and
Considering that the American Convention on Human Rights provides that draft additional
protocols to that Convention may be submitted for consideration to the States Parties, meeting
together on the occasion of the General Assembly of the Organization of American States, for the
purpose of gradually incorporating other rights and freedoms into the protective system thereof,
Have agreed upon the following Additional Protocol to the American Convention on Human
Rights "Protocol of San Salvador":
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights "Protocol of San Salvador"
65
The States Parties also undertake to implement and strengthen programs that help to ensure suitable
family care, so that women may enjoy a real opportunity to exercise the right to work.
Article 7
Just, Equitable, and Satisfactory Conditions of Work
The States Parties to this Protocol recognize that the right to work to which the foregoing
article refers presupposes that everyone shall enjoy that right under just, equitable, and satisfactory
conditions, which the States Parties undertake to guarantee in their internal legislation, particularly with
respect to:
a. Remuneration which guarantees, as a minimum, to all workers dignified and decent
living conditions for them and their families and fair and equal wages for equal
work, without distinction;
b. The right of every worker to follow his vocation and to devote himself to the activity
that best fulfills his expectations and to change employment in accordance with the
pertinent national regulations;
c. The right of every worker to promotion or upward mobility in his employment, for
which purpose account shall be taken of his qualifications, competence, integrity
and seniority;
d. Stability of employment, subject to the nature of each industry and occupation and
the causes for just separation. In cases of unjustified dismissal, the worker shall
have the right to indemnity or to reinstatement on the job or any other benefits
provided by domestic legislation;
e. Safety and hygiene at work;
f. The prohibition of night work or unhealthy or dangerous working conditions and, in
general, of all work which jeopardizes health, safety, or morals, for persons under
18 years of age. As regards minors under the age of 16, the work day shall be
subordinated to the provisions regarding compulsory education and in no case
shall work constitute an impediment to school attendance or a limitation on
benefiting from education received;
g. A reasonable limitation of working hours, both daily and weekly. The days shall be
shorter in the case of dangerous or unhealthy work or of night work;
h. Rest, leisure and paid vacations as well as remuneration for national holidays.
Article 8
Trade Union Rights
1. The States Parties shall ensure:
a. The right of workers to organize trade unions and to join the union of their choice
for the purpose of protecting and promoting their interests. As an extension of that
right, the States Parties shall permit trade unions to establish national federations
or confederations, or to affiliate with those that already exist, as well as to form
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights "Protocol of San Salvador"
66
international trade union organizations and to affiliate with that of their choice. The
States Parties shall also permit trade unions, federations and confederations to
function freely;
b. The right to strike.
2. The exercise of the rights set forth above may be subject only to restrictions
established by law, provided that such restrictions are characteristic of a democratic society and
necessary for safeguarding public order or for protecting public health or morals or the rights and
freedoms of others. Members of the armed forces and the police and of other essential public services
shall be subject to limitations and restrictions established by law.
3. No one may be compelled to belong to a trade union.
Article 9
Right to Social Security
1. Everyone shall have the right to social security protecting him from the
consequences of old age and of disability which prevents him, physically or mentally, from securing the
means for a dignified and decent existence. In the event of the death of a beneficiary, social security
benefits shall be applied to his dependents.
2. In the case of persons who are employed, the right to social security shall cover at
least medical care and an allowance or retirement benefit in the case of work accidents or occupational
disease and, in the case of women, paid maternity leave before and after childbirth.
Article 10
Right to Health
1. Everyone shall have the right to health, understood to mean the enjoyment of the
highest level of physical, mental and social well‐being.
2. In order to ensure the exercise of the right to health, the States Parties agree to
recognize health as a public good and, particularly, to adopt the following measures to ensure that right:
a. Primary health care, that is, essential health care made available to all individuals
and families in the community;
b. Extension of the benefits of health services to all individuals subject to the State's
jurisdiction;
c. Universal immunization against the principal infectious diseases;
d. Prevention and treatment of endemic, occupational and other diseases;
e. Education of the population on the prevention and treatment of health problems,
and
f. Satisfaction of the health needs of the highest risk groups and of those whose
poverty makes them the most vulnerable.
Document No. 291
African Charter on Human and Peoples’ Rights, 1981,
article 15
Document No. 292
Principles and Guidelines on the Implementation of
Economic, Social and Cultural Rights in the
African Charter on Human and Peoples’ Rights, 2010,
para. 59
1
AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
PRINCIPLES AND GUIDELINES ON THE IMPLEMENTATION OF ECONOMIC,
SOCIAL AND CULTURAL RIGHTS IN THE AFRICAN CHARTER ON HUMAN AND
PEOPLES’ RIGHTS
21
Right to Work (Article 15)
56. Article 15: “Every individual shall have the right to work under equitable and
satisfactory conditions, and receive equal pay for equal work.”
57. The right to work is essential for the realisation of other economic, social and cultural
rights. It forms an inseparable and inherent part of human dignity, and is integral to
an individual’s role within society. Access to equitable and decent work, which
respects the fundamental rights of the human person and the rights of workers in
terms of conditions, safety and remuneration,xviii can also be critical for both survival
and human development.
58. The right to work should not be understood as an absolute and unconditional right to
obtain employment. Rather, the State has the obligation to facilitate employment
through the creation of an environment conducive to the full employment of
individuals within society under conditions that ensure the realisation of the dignity of
the individual. The right to work includes the right to freely and voluntarily choose
what work to accept.
59. The right to work includes the following obligations of the State to:
Minimum Core Obligations
a. Prohibit slavery and forced labour, which include all forms of work or service
exacted from any person under the menace of any penalty and/or for which the
said person has not offered himself/herself voluntarily. It includes also all forms
of economic exploitation of childrenxix and other members of vulnerable and
disadvantaged groups.
b. Ensure the right to freedom of association, including the rights to collective
bargaining, to strike and other related organisational and trade union rights.
These rights include the right to form and join a trade union of choice (including
the right not to), the right of trade unions to join national and international
federations and confederations, and the right of trade unions to function freely
without undue interference.
c. Provide adequate protection against unfair or unjustified arbitrary and
constructive dismissal, and other unfair labour practices.
National Plans, Policies and Systems
d. Adopt and implement a national employment strategy and plan of action based
on and addressing the concerns of all workers (in both the formal and informal
sectors) and the unemployed.
e. Take appropriate steps to realise the right of everyone to gain their living by
work which they freely choose and accept. Such steps include, for example,
technical and vocational guidance and training programmes; policies to achieve
steady economic; social and cultural development and full productive
employment; administration of services to assist and support individuals in
order to enable them to identify and find available employment including the
Document No. 293
Arab Charter on Human Rights, 2004, article 35
(Translated from Arabic)
Arab Charter on Human Rights
Based on the faith of the Arab nation in the dignity of the human person whom God has
exalted ever since the beginning of creation and in the fact that the Arab homeland is the cradle
of religions and civilizations whose lofty human values affirm the human right to a decent life
based on freedom, justice and equality,
In furtherance of the eternal principles of fraternity, equality and tolerance among human
beings consecrated by the noble Islamic religion and the other divinely-revealed religions,
Being proud of the humanitarian values and principles that the Arab nation has
established throughout its long history, which have played a major role in spreading knowledge
between East and West, so making the region a point of reference for the whole world and a
destination for seekers of knowledge and wisdom,
Believing in the unity of the Arab nation, which struggles for its freedom and defends the
right of nations to self-determination, to the preservation of their wealth and to development;
believing in the sovereignty of the law and its contribution to the protection of universal and
interrelated human rights and convinced that the human person’s enjoyment of freedom, justice
and equality of opportunity is a fundamental measure of the value of any society,
Rejecting all forms of racism and Zionism, which constitute a violation of human rights
and a threat to international peace and security, recognizing the close link that exists between
human rights and international peace and security, reaffirming the principles of the Charter of the
United Nations, the Universal Declaration of Human Rights and the provisions of the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights, and having regard to the Cairo Declaration on
Human Rights in Islam,
CHR/NONE/2004/40/Rev.1
GE.04-14687 (E) 300604 010704
- 13 -
2. Every worker has the right to the enjoyment of just and favourable conditions of work
which ensure appropriate remuneration to meet his essential needs and those of his family and
regulate working hours, rest and holidays with pay, as well as the rules for the preservation of
occupational health and safety and the protection of women, children and disabled persons in the
place of work.
3. The States parties recognize the right of the child to be protected from economic
exploitation and from being forced to perform any work that is likely to be hazardous or to
interfere with the child’s education or to be harmful to the child’s health or physical, mental,
spiritual, moral or social development. To this end, and having regard to the relevant provisions
of other international instruments, States parties shall in particular:
(a) Define a minimum age for admission to employment;
(b) Establish appropriate regulation of working hours and conditions;
(c) Establish appropriate penalties or other sanctions to ensure the effective
enforcement of these provisions.
4. There shall be no discrimination between men and women in their enjoyment of the right
to effectively benefit from training, employment and job protection and the right to receive equal
remuneration for equal work.
5. Each State party shall ensure to workers who migrate to its territory the requisite
protection in accordance with the laws in force.
Article 35
1. Every individual has the right to freely form trade unions or to join trade unions and to
freely pursue trade union activity for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights and freedoms except such as
are prescribed by the laws in force and that are necessary for the maintenance of national
security, public safety or order or for the protection of public health or morals or the rights and
freedoms of others.
- 14 -
3. Every State party to the present Charter guarantees the right to strike within the limits
laid down by the laws in force.
Article 36
The States parties shall ensure the right of every citizen to social security, including
social insurance.
Article 37
The right to development is a fundamental human right and all States are required to
establish the development policies and to take the measures needed to guarantee this right. They
have a duty to give effect to the values of solidarity and cooperation among them and at the
international level with a view to eradicating poverty and achieving economic, social, cultural
and political development. By virtue of this right, every citizen has the right to participate in the
realization of development and to enjoy the benefits and fruits thereof.
Article 38
Every person has the right to an adequate standard of living for himself and his family,
which ensures their well-being and a decent life, including food, clothing, housing, services and
the right to a healthy environment. The States parties shall take the necessary measures
commensurate with their resources to guarantee these rights.
Article 39
1. The States parties recognize the right of every member of society to the enjoyment of the
highest attainable standard of physical and mental health and the right of the citizen to free basic
health-care services and to have access to medical facilities without discrimination of any kind.
2. The measures taken by States parties shall include the following:
(a) Development of basic health-care services and the guaranteeing of free and easy
access to the centres that provide these services, regardless of geographical location or economic
status;
Document No. 294
Charter of Fundamental Social Rights in the
Southern African Development Community, 2003,
article 4
Document No. 295
Canada–Costa Rica Agreement on Labour Cooperation,
2001, article 1 and annex 1
Canada.ca Employment and Social Development Canada Labour Relations
International Affairs
Negotiating and Implementing International Labour Cooperation Agreements
Canada-Costa Rica Agreement on
Labour Cooperation
Text of the Canada-Costa Rica Agreement on Labour Cooperation
The Canada-Costa Rica Agreement on Labour Cooperation (CCRALC) was
signed in April 2001 in tandem with the bilateral free trade agreement
(CCRFTA) between the two countries. It became effective in November
2002.
The CCRALC provides a framework for dealing with labour issues in the
context of trade liberalization. Its two pillars are cooperation and the
effective enforcement of domestic labour laws. In the Agreement, both
countries commit to reflect internationally-recognized core labour
principles and rights in their domestic labour legislation, and to improve
governance by administering and enforcing those laws in a fair,
transparent, and effective manner.
The core labour principles and rights set out in the Agreement are based
on the International Labour Organization's Declaration on Fundamental
Principles and Rights at Work (1998), which represents a global consensus
on the international core labour rights that countries are to promote,
regardless of their level of economic development.
Preamble
The Government of Canada and the Government of the Republic of Costa
Rica:
Recalling their resolve to:
create an expanded and secure market for the goods produced in
their territories,
create new employment opportunities and improve working
conditions and living standards in their respective territories, and
protect, enhance and enforce basic workers' rights;
Affirming their continuing respect for each other's Constitution and law;
Reaffirming that both countries are members of the International
Labour Organisation (ILO (International Labour Organisation));
Acknowledging that technical cooperation on labour matters ensures
that in the context of a strategy for economic and social development,
economic and social policies are mutually reinforcing components of
sustainable development;
Recognizing that differences exist in their respective levels of
development and sizes of their economies;
Convinced of the benefits to be gained from further cooperation
between them on labour matters;
Have Agreed as follows:
Part One - Objectives
Article 1: Objectives
The objectives of this Agreement are to:
1. improve working conditions and living standards in each Party's
territory;
2. promote, to the maximum extent possible, the labour principles and
rights set out in Annexes 1 and 2;
3. encourage cooperation to promote innovation and rising levels of
productivity and quality in each Party's territory;
4. encourage publication and exchange of information and joint
studies in order to enhance understanding of the labour law and
institutions in each Party's territory;
5. pursue cooperative labour-related activities on the basis of mutual
benefit;
6. promote compliance with and effective enforcement by each Party of
its labour law; and
7. foster full and open exchange of information between the Parties in
regard to the application of their labour law.
Part Two - Obligations
Article 2: General Commitments
Affirming full respect for each Party's Constitution and labour law and
recognizing the right of each Party to establish its own labour standards
in its territory and to adopt or modify accordingly its labour law, and set
its priorities in the execution of its labour policies, each Party shall ensure
that its labour law embodies and provides protection for the labour
principles and rights set out in Annexes 1 and 2.
Article 3: Scope of the Agreement
Labour law is considered to fall within the scope of this Agreement if it is
directly related to the labour principles and rights set out in Annexes 1
and 2.
Article 4: Government Enforcement Action
1. Each Party shall, subject to Article 24, promote compliance with and
effectively enforce its labour law through appropriate government
Annex 1 - Fundamental Principles and Rights at Work
The Parties are committed to respecting and promoting the principles
and rights recognized in the ILO (International Labour Organisation)
Declaration on Fundamental Principles and Rights at Work. The Parties shall
reflect these in their laws, regulations, procedures and practices:
freedom of association and protection of the right to organize;
the right to bargain collectively;
the right to strike;
prohibition of forced labour;
labour protections for children and young persons;
elimination of discrimination; and
equal pay for women and men.
Annex 2 - Additional Labour Priniples and Rights
The following are the guiding principles and rights that the Parties are
committed to promote, subject to each Party's domestic law, but do not
establish common minimum standards for their domestic law. They
cover broad areas of concern where the Parties have developed, each in
its own way, jurisprudence, laws, regulations, procedures and practices
that protect the rights and interests of their respective workers:
minimum employment standards;
prevention of occupational injuries and illnesses; and
compensation in cases of occupational injuries or illnesses.
For the Republic of
Costa Rica
Document No. 296
Canada–Colombia Agreement on Labour Cooperation,
2008, article 1
Canada.ca
Employment and Social Development Canada
Labour Relations
International Affairs
Negotiating and Implementing International Labour Cooperation Agreements
Canada-Colombia Agreement on Labour
Cooperation
Text of the Canada-Colombia Agreement on Labour Cooperation
Public communication CAN 2016-1 (Colombia)
Public communication CAN 2016-1 (Colombia) – Accepted for
review
Review of Public Communication CAN 2016-1 – Report issued
pursuant to the Canada-Colombia Agreement on Labour
Cooperation
Action Plan under the Canada-Colombia Agreement on Labour
Cooperation - 2018-2021
The Canada-Colombia Free Trade Agreement (CCOFTA) and its parallel
accords on labour and the environment were signed on November 21,
2008, and came into effect on August 15, 2011.
The Canada-Colombia Labour Cooperation Agreement (LCA) is based on
cooperation between the parties to promote and enforce fundamental
labour principles and rights at work.
Through the LCA, both countries are committed to ensuring that their
laws respect the International Labour Organization's 1998 Declaration on
Fundamental Principles and Rights at Work.
Recognizing the importance of encouraging voluntary practices of
corporate social responsibility within their territories or jurisdictions, to
ensure coherence between labour and economic objectives; and
Building on existing institutions and mechanisms in Canada and
Colombia to achieve the preceding economic and social goals;
Have agreed as follows:
Part one: Obligations
Article 1: General obligations
1. Each Party shall ensure that its statutes and regulations, and
practices thereunder, embody and provide protection for the
following internationally recognized labour principles and rights:
a. freedom of association and the right to collective bargaining
(including protection of the right to organize and the right to
strike);
b. the elimination of all forms of forced or compulsory labour;
c. the effective abolition of child labour (including protections for
children and young persons);
d. the elimination of discrimination in respect of employment and
occupation;
e. acceptable conditions of work with respect to minimum wages,
hours of work and occupational health and safety; and
f. providing migrant workers with the same legal protections as
the Party's nationals in respect of working conditions.
2. To the extent that the principles and rights stated above relate to the
ILO, subparagraphs (a) to (d) above refer only to the ILO 1998
Declaration, whereas those stated in subparagraphs (e) and (f) more
closely relate to the ILO`s Decent Work Agenda.
Article 2: Non-derogation
Document No. 297
Canada-Peru Agreement on Labour Cooperation,
2008, article 1
Canada.ca
Employment and Social Development Canada
Labour Relations
International Affairs
Negotiating and Implementing International Labour Cooperation Agreements
Canada-Peru Agreement on Labour
Cooperation
Text of the Canada-Peru Agreement on Labour Cooperation (CPALC)
Full text of the CPALC in PDF 128 KB )
The Canada-Peru Free Trade Agreement (FTA) and its parallel accords on
labour and the environment were signed on May 29, 2008, and came into
effect on August 1, 2009.
The Canada-Peru Agreement on Labour Cooperation is based on
cooperation between the parties to promote and enforce fundamental
labour principles and rights at work.
Key elements of the Labour Cooperation Agreement include:
Canada and Peru have committed to ensuring their laws respect the
International Labour Organization (ILO) Declaration on Fundamental
Principles and Rights at Work of 1998.
Canada and Peru are also committed to provide protections for
occupational safety and health, migrant workers, as well as
minimum employment standards such as minimum wages and
overtime pay.
The Agreement enables the public to submit complaints to either
country concerning the compliance of labour laws with the principles
found in the ILO Declaration, or a perceived failure to enforce
Have agreed as follows:
Part one - Obligations
Article 1: General Obligations
1. Each Party shall ensure that its statutes and regulations, and
practices thereunder, embody and provide protection for the
following internationally recognized labour principles and rights:
a. freedom of association and the right to collective bargaining
(including protection of the right to organize and the right to
strike);
b. the elimination of all forms of forced or compulsory labour;
c. the effective abolition of child labour (including protections for
children and young persons);
d. the elimination of discrimination in respect of employment and
occupation;
e. acceptable conditions of work with respect to minimum wages,
hours of work and occupational health and safety; and
f. providing migrant workers with the same legal protections as
the Party's nationals in respect of working conditions.
2. To the extent that the principles and rights stated above relate to the
ILO, subparagraphs (a) to (d) refer only to the ILO Declaration,
whereas those stated in subparagraphs (e) and (f) more closely
relate to the ILO's Decent Work Agenda.
Article 2: Non-Derogation
A Party shall not waive or otherwise derogate from, or offer to waive or
otherwise derogate from, its labour laws in a manner that weakens or
reduces adherence to the internationally recognized labour principles
and rights referred to in Article 1 to encourage trade or investment.
Article 3: Government Enforcement Action
Document No. 298
Canada-Jordan Agreement on Labour Cooperation,
2009, article 1
Canada.ca
Employment and Social Development Canada
Labour Relations
International Affairs
Negotiating and Implementing International Labour Cooperation Agreements
Agreement on Labour Cooperation
between Canada and Jordan
Text of the Canada-Jordan Agreement on Labour Cooperation
Full text of agreement in PDF (131 KB)
On June 28, 2009, Canada and Jordan signed a free trade agreement
(FTA) and two parallel agreements in the areas of labour and
environment. These agreements entered into force on October 1, 2012.
The Canada-Jordan Agreement on Labour Cooperation is based on
cooperation between the Parties to promote and enforce fundamental
labour principles and rights at work. It also provides for an open and
transparent dispute resolution process.
Key elements of the Labour Cooperation Agreement include:
Canada and Jordan have committed to ensuring that their laws
respect the International Labour Organization (ILO)'s 1998
Declaration on Fundamental Principles and Rights at Work.
Canada and Jordan are also committed to providing protections for
occupational safety and health, migrant workers, acceptable
minimum employment standards such as minimum wages and
overtime pay, and compensation for occupational injuries and
illnesses.
Building on existing institutions and mechanisms in Canada and Jordan
to achieve the preceding economic and social goals;
Have agreed as follows:
Part one
Obligations
Article 1: General Commitments
1. Each Party shall ensure that its labour law and practices embody and
provide protection for the following internationally recognized
labour principles and rights:
a. freedom of association and the right to collective bargaining
(including protection of the right to organize and the right to
strike);
b. the elimination of all forms of forced or compulsory labour;
c. the effective abolition of child labour (including protections for
children and young persons);
d. the elimination of discrimination in respect of employment and
occupation (including equal pay for women and men);
e. acceptable minimum employment standards, such as minimum
wages and overtime pay, for wage earners, including those not
covered by collective agreements;
f. the prevention of occupational injuries and illnesses;
g. compensation in cases of occupational injuries or illnesses; and
h. non-discrimination in respect of working conditions for migrant
workers.
2. To the extent that the principles and rights stated above relate to the
ILO, paragraphs (a) to (d) refer only to the ILO 1998 Declaration,
whereas the rights stated in paragraphs (e), (f), (g) and (h) more
closely relate to the ILO's Decent Work Agenda.
Article 2: Non-Derogation
Document No. 299
Southern African Development Community Protocol
on Employment and Labour, 2014, article 6
Document No. 300
Agreement between the United States of America, the
United Mexican States, and Canada, 2018, article 23.3
23-1
CHAPTER 23
LABOR
Article 23.1: Definitions
For the purposes of this Chapter:
ILO Declaration on Rights at Work means the International Labor Organization (ILO)
Declaration on Fundamental Principles and Rights at Work and its Follow-Up (1998);
labor laws means statutes and regulations, or provisions of statutes and regulations, of a Party that
are directly related to the following internationally recognized labor rights:
(a) freedom of association and the effective recognition of the right to collective
bargaining;
(b) the elimination of all forms of forced or compulsory labor;
(c) the effective abolition of child labor, a prohibition on the worst forms of child labor,
and other labor protections for children and minors;
(d) the elimination of discrimination in respect of employment and occupation; and
(e) acceptable conditions of work with respect to minimum wages,1 hours of work, and
occupational safety and health;
statutes and regulations and statutes or regulations means:2
(a) for Mexico, Acts of Congress or regulations and provisions promulgated pursuant
to Acts of Congress and, for the purposes of this Chapter, includes the Constitution
of the United Mexican States; and
(b) for the United States, Acts of Congress or regulations promulgated pursuant to Acts
of Congress and, for the purposes of this Chapter, includes the Constitution of the
United States.
1 For greater certainty, a Party’s labor laws regarding “acceptable conditions of work with respect to minimum wages”
include requirements under that Party’s labor laws to provide wage-related benefit payments to, or on behalf of,
workers, such as those for profit sharing, bonuses, retirement, and healthcare.
2 For greater certainty, for each Party setting out a definition, which has a federal form of government, its definition
provides coverage for substantially all workers.
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Article 23.2: Statement of Shared Commitments
1. The Parties affirm their obligations as members of the ILO, including those stated in the
ILO Declaration on Rights at Work and the ILO Declaration on Social Justice for a Fair
Globalization (2008).
2. The Parties recognize the important role of workers’ and employers’ organizations in
protecting internationally recognized labor rights.
3. The Parties also recognize the goal of trading only in goods produced in compliance with
this Chapter.
Article 23.3: Labor Rights
1. Each Party shall adopt and maintain in its statutes and regulations, and practices thereunder,
the following rights, as stated in the ILO Declaration on Rights at Work:3, 4, 5
(a) freedom of association6 and the effective recognition of the right to collective
bargaining;7
(b) the elimination of all forms of forced or compulsory labor;
(c) the effective abolition of child labor and, for the purposes of this Agreement, a
prohibition on the worst forms of child labor; and
(d) the elimination of discrimination in respect of employment and occupation.
3 The obligations set out in this Article, as they relate to the ILO, refer only to the ILO Declaration on Rights at Work.
4 A failure to comply with an obligation under paragraphs 1 or 2 must be in a manner affecting trade or investment
between the Parties. For greater certainty, a failure is “in a manner affecting trade or investment between the Parties”
if it involves: (i) a person or industry that produces a good or supplies a service traded between the Parties or has an
investment in the territory of the Party that has failed to comply with this obligation; or (ii) a person or industry that
produces a good or supplies a service that competes in the territory of a Party with a good or a service of another Party.
5 For purposes of dispute settlement, a panel shall presume that a failure is in a manner affecting trade or investment
between the Parties, unless the responding Party demonstrates otherwise.
6 For greater certainty, the right to strike is linked to the right to freedom of association, which cannot be realized
without protecting the right to strike.
7 Annex 23-A (Worker Representation in Collective Bargaining in Mexico) sets out obligations with regard to worker
representation in collective bargaining.
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2. Each Party shall adopt and maintain statutes and regulations, and practices thereunder,
governing acceptable conditions of work with respect to minimum wages, hours of work, and
occupational safety and health.
Article 23.4: Non-Derogation
The Parties recognize that it is inappropriate to encourage trade or investment by
weakening or reducing the protections afforded in each Party’s labor laws. Accordingly, no Party
shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, its statutes
or regulations:
(a) implementing Article 23.3.1 (Labor Rights), if the waiver or derogation would be
inconsistent with a right set out in that paragraph; or
(b) implementing Article 23.3.1 or Article 23.3.2 (Labor Rights), if the waiver or
derogation would weaken or reduce adherence to a right set out in Article 23.3.1
(Labor Rights), or to a condition of work referred to in Article 23.3.2 (Labor
Rights), in a special trade or customs area, such as an export processing zone or
foreign trade zone, in the Party’s territory;
in a manner affecting trade or investment between the Parties.8, 9
8 For greater certainty, a waiver or derogation is “in a manner affecting trade or investment between the Parties” if it
involves: (i) a person or industry that produces a good or supplies a service traded between the Parties or has an
investment in the territory of the Party that has failed to comply with this obligation; or (ii) a person or industry that
produces a good or supplies a service that competes in the territory of a Party with a good or a service of another Party.
9 For purposes of dispute settlement, a panel shall presume that a failure is in a manner affecting trade or investment
between the Parties, unless the responding Party demonstrates otherwise.
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Article 23.5: Enforcement of Labor Laws
1. No Party shall fail to effectively enforce its labor laws through a sustained or recurring
course of action or inaction10 in a manner affecting trade or investment between the Parties11, 12
after the date of entry into force of this Agreement.
2. Each Party shall promote compliance with its labor laws through appropriate government
action, such as by:
(a) appointing and training inspectors;
(b) monitoring compliance and investigating suspected violations, including through
unannounced on-site inspections, and giving due consideration to requests to
investigate an alleged violation of its labor laws;
(c) seeking assurances of voluntary compliance;
(d) requiring record keeping and reporting;
(e) encouraging the establishment of labor-management committees to address labor
regulation of the workplace;
(f) providing or encouraging mediation, conciliation, and arbitration services;
(g) initiating, in a timely manner, proceedings to seek appropriate sanctions or
remedies for violations of its labor laws; and
(h) implementing remedies and sanctions imposed for noncompliance with its labor
laws, including timely collection of fines and reinstatement of workers.
3. If a Party fails to comply with an obligation under this Chapter, a decision made by that
Party on the provision of enforcement resources shall not excuse that failure. Each Party retains
10 For greater certainty, a “sustained or recurring course of action or inaction” is “sustained” if the course of action or
inaction is consistent or ongoing, and is “recurring” if the course of action or inaction occurs periodically or repeatedly
and when the occurrences are related or the same in nature. A course of action or inaction does not include an isolated
instance or case.
11 For greater certainty, a “course of action or inaction” is “in a manner affecting trade or investment between the
Parties” if the course involves: (i) a person or industry that produces a good or supplies a service traded between the
Parties or has an investment in the territory of the Party that has failed to comply with this obligation; or (ii) a person
or industry that produces a good or supplies a service that competes in the territory of a Party with a good or a service
of another Party.
12 For purposes of dispute settlement, a panel shall presume that a failure is in a manner affecting trade or investment
between the Parties, unless the responding Party demonstrates otherwise.
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the right to exercise reasonable enforcement discretion and to make bona fide decisions with regard
to the allocation of enforcement resources between labor enforcement activities among the
fundamental labor rights and acceptable conditions of work enumerated in Article 23.3.1 and
Article 23.3.2 (Labor Rights), provided that the exercise of that discretion, and those decisions,
are not inconsistent with its obligations under this Chapter.
4. Nothing in this Chapter shall be construed to empower a Party’s authorities to undertake
labor law enforcement activities in the territory of another Party.
Article 23.6: Forced or Compulsory Labor
1. The Parties recognize the goal of eliminating all forms of forced or compulsory labor,
including forced or compulsory child labor. Accordingly, each Party shall prohibit the importation
of goods into its territory from other sources produced in whole or in part by forced or compulsory
labor, including forced or compulsory child labor.
2. To assist in the implementation of paragraph 1, the Parties shall establish cooperation for
the identification and movement of goods produced by forced labor as provided for under Article
23.12.5(c) (Cooperation).
Article 23.7: Violence Against Workers
The Parties recognize that workers and labor organizations must be able to exercise the
rights set out in Article 23.3 (Labor Rights) in a climate that is free from violence, threats, and
intimidation, and the imperative of governments to effectively address incidents of violence,
threats, and intimidation against workers. Accordingly, no Party shall fail to address violence or
threats of violence against workers, directly related to exercising or attempting to exercise the
rights set out in Article 23.3 (Labor Rights), in a manner affecting trade or investment between the
Parties.13, 14
13 For greater certainty, a failure is “in a manner affecting trade or investment between the Parties” if it involves: (i) a
person or industry that produces a good or supplies a service traded between the Parties or has an investment in the
territory of the Party that has failed to comply with this obligation; or (ii) a person or industry that produces a good or
supplies a service that competes in the territory of a Party with a good or a service of another Party.
14 For purposes of dispute settlement, a panel shall presume that a failure is in a manner affecting trade or investment
between the Parties, unless the responding Party demonstrates otherwise.
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Article 23.8: Migrant Workers
The Parties recognize the vulnerability of migrant workers with respect to labor
protections. Accordingly, in implementing Article 23.3 (Labor Rights), each Party shall ensure
that migrant workers are protected under its labor laws, whether they are nationals or non-nationals
of the Party.
Article 23.9: Discrimination in the Workplace
The Parties recognize the goal of eliminating discrimination in employment and
occupation, and support the goal of promoting equality of women in the workplace. Accordingly,
each Party shall implement policies15 that it considers appropriate to protect workers against
employment discrimination on the basis of sex (including with regard to sexual harassment),
pregnancy, sexual orientation, gender identity, and caregiving responsibilities; provide jobprotected
leave for birth or adoption of a child and care of family members; and protect against
wage discrimination.
Article 23.10: Public Awareness and Procedural Guarantees
1. Each Party shall promote public awareness of its labor laws, including by ensuring that
information related to its labor laws and enforcement and compliance procedures is publicly
available.
2. Each Party shall ensure that a person with a recognized interest under its law in a particular
matter has appropriate access to tribunals for the enforcement of its labor laws. These tribunals
may include administrative tribunals, quasi-judicial tribunals, judicial tribunals, or labor tribunals,
as provided for in each Party’s law.
3. Each Party shall ensure that proceedings before these tribunals for the enforcement of its
labor laws:
(a) are fair, equitable and transparent;
(b) comply with due process of law;
(c) do not entail unreasonable fees or time limits or unwarranted delay; and
15 The United States’ existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill
the obligations set forth in this Article. The Article thus requires no additional action on the part of the United States,
including any amendments to Title VII of the Civil Rights Act of 1964, in order for the United States to be in
compliance with the obligations set forth in this Article.
23-7
(d) that any hearings in these proceedings are open to the public, except where the
administration of justice otherwise requires, and in accordance with its applicable
laws.
4. Each Party shall ensure that:
(a) the parties to these proceedings are entitled to support or defend their respective
positions, including by presenting information or evidence; and
(b) final decisions on the merits of the case:
(i) are based on information or evidence in respect of which the parties were
offered the opportunity to be heard,
(ii) state the reasons on which they are based, and
(iii) are available in writing without undue delay to the parties to the proceedings
and, consistent with its law, to the public.
5. Each Party shall provide, as appropriate, that parties to these proceedings have the right to
seek review and, if warranted, correction of decisions issued in these proceedings.
6. Each Party shall ensure that tribunals that conduct or review these proceedings are impartial
and independent.
7. Each Party shall ensure that the parties to these proceedings have access to remedies under
its law for the effective enforcement of their rights under its labor laws and that these remedies are
executed in a timely manner.
8. Each Party shall provide procedures to effectively enforce the final decisions of its tribunals
in these proceedings.
9. For greater certainty, and without prejudice to whether a tribunal’s decision is inconsistent
with a Party’s obligations under this Chapter, nothing in this Chapter shall be construed to require
a tribunal of a Party to reopen a decision that it has made in a particular matter.
10. Each Party shall ensure that other types of proceedings within its labor bodies for the
implementation of its labor laws:
(a) are fair and equitable;
(b) are conducted by officials who meet appropriate guarantees of impartiality;
(c) do not entail unreasonable fees or time limits or unwarranted delay; and
23-8
(d) document and communicate decisions to persons directly affected by these
proceedings.
Article 23.11: Public Submissions
1. Each Party, through its contact point designated under Article 23.15 (Contact Points), shall
provide for the receipt and consideration of written submissions from persons of a Party on matters
related to this Chapter in accordance with its domestic procedures. Each Party shall make readily
accessible and publicly available its procedures, including timelines, for the receipt and
consideration of written submissions.
2. Each Party shall:
(a) consider matters raised by the submission and provide a timely response to the
submitter, including in writing as appropriate; and
(b) make the submission and the results of its consideration available to the other
Parties and the public, as appropriate, in a timely manner.
3. A Party may request from the person or organization that made the submission additional
information that is necessary to consider the substance of the submission.
Article 23.12: Cooperation
1. The Parties recognize the importance of cooperation as a mechanism for effective
implementation of this Chapter, to enhance opportunities to improve labor standards, and to
further advance common commitments regarding labor matters, including the principles and
rights stated in the ILO Declaration on Rights at Work.
2. The Parties may, commensurate with the availability of resources, cooperate through:
(a) exchanging of information and sharing of best practices on issues of common
interest, including through seminars, workshops, and online fora;
(b) study trips, visits, and research studies to document and study policies and
practices;
(c) collaborative research and development related to best practices in subjects of
mutual interest;
(d) specific exchanges of technical expertise and assistance, as appropriate; and
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(e) other forms as the Parties may decide.
3. In undertaking cooperative activities, the Parties shall consider each Party’s priorities and
complementarity with initiatives in existence, with the aim to achieve mutual benefits and
measurable labor outcomes.
4. Each Party shall invite the views and, as appropriate, participation of its stakeholders,
including worker and employer representatives, in identifying potential areas for cooperation
and undertaking cooperative activities.
5. The Parties may develop cooperative activities in the following areas:
(a) labor laws and practices, including the promotion and effective implementation of
the principles and rights as stated in the ILO Declaration on Rights at Work;
(b) labor laws and practices related to compliance with ILO Convention No. 182
Concerning the Prohibition and Immediate Action for the Elimination of the Worst
Forms of Child Labor;
(c) identification and movement of goods produced by forced labor;
(d) combatting forced labor and human trafficking, including on fishing vessels;
(e) addressing violence against workers, including for trade union activity;
(f) occupational safety and health, including the prevention of occupational injuries
and illnesses;
(g) institutional capacity of labor administrative and judicial bodies;
(h) labor inspectorates and inspection systems, including methods and training to
improve the level and efficiency of labor law enforcement, strengthen labor
inspection systems, and help ensure compliance with labor laws;
(i) remuneration systems and mechanisms for compliance with labor laws pertaining
to hours of work, minimum wages and overtime, and employment conditions;
(j) addressing gender-related issues in the field of labor and employment, including:
(i) elimination of discrimination on the basis of sex in respect of employment,
occupation, and wages,
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(ii) developing analytical and enforcement tools related to equal pay for equal
work or work of equal value,
(iii) promotion of labor practices that integrate and retain women in the job
market, and building the capacity and skills of women workers, including
on workplace challenges and in collective bargaining,
(iv) consideration of gender issues related to occupational safety and health and
other workplace practices, including advancement of child care, nursing
mothers, and related policies and programs, and in the prevention of
occupational injuries and illnesses, and
(v) prevention of gender-based workplace violence and harassment;
(k) promotion of productivity, innovation, competitiveness, training and human capital
development in workplaces, particularly in respect to SMEs;
(l) addressing the opportunities of a diverse workforce, including:
(i) promotion of equality and elimination of employment discrimination in the
areas of age, disability, race, ethnicity, religion, sexual orientation, gender
identity, and other characteristics not related to merit or the requirements of
employment, and
(ii) promotion of equality, elimination of employment discrimination, and
protection of migrant workers and other vulnerable workers, including lowwaged,
casual, or temporary workers;
(m) collection and use of labor statistics, indicators, methods, and procedures, including
on the basis of sex;
(n) social protection issues, including workers’ compensation in case of occupational
injury or illness, pension systems, and employment assistance schemes;
(o) labor relations, including forms of cooperation and dispute resolution to improve
labor relations among workers, employers, and governments;
(p) apprenticeship programs;
(q) social dialogue, including tripartite consultation and partnership;
(r) with respect to labor relations in multi-national enterprises, promoting information
sharing and dialogue related to conditions of employment by enterprises operating
23-11
in two or more Parties with representative worker organizations in each of the
cooperating Parties; and
(s) other areas as the Parties may decide.
6. The Parties may establish cooperative arrangements with the ILO or other international
and regional organizations to draw on their expertise and resources to further the purposes of this
Chapter.
Article 23.13: Cooperative Labor Dialogue
1. A Party may request dialogue with another Party on any matter arising under this Chapter
at any time by delivering a written request to the contact point that the other Party has designated
under Article 23.15 (Contact Points).
2. The requesting Party shall include information that is specific and sufficient to enable the
receiving Party to respond, including identification of the matter at issue, an indication of the basis
of the request under this Chapter and, when relevant, how trade or investment between the Parties
is affected.
3. Unless the requesting and receiving Parties (the dialoguing Parties) decide otherwise,
dialogue must commence within 30 days of a Party’s receipt of a request for dialogue. The
dialoguing Parties shall engage in dialogue in good faith. As part of the dialogue, the dialoguing
Parties shall provide a means for receiving and considering the views of interested persons on the
matter.
4. Dialogue may be held in person or by any technological means available to the dialoguing
Parties.
5. The dialoguing Parties shall address all the issues raised in the request. If the dialoguing
Parties resolve the matter, they shall document the outcome, including, if appropriate, specific
steps and timelines that they have decided upon. The dialoguing Parties shall make the outcome
available to the public, unless they decide otherwise.
6. In developing an outcome pursuant to paragraph 5, the dialoguing Parties should consider
all available options and may jointly decide on a course of action they consider appropriate,
including:
(a) the development and implementation of an action plan in a form that they find
satisfactory, which may include specific and verifiable steps, such as on labor
inspection, investigation, or compliance action, and appropriate timeframes;
23-12
(b) the independent verification of compliance or implementation by individuals or
entities, such as the ILO, chosen by the dialoguing Parties; and
(c) appropriate incentives, such as cooperative programs and capacity building, to
encourage or assist the dialoguing Parties to identify and address labor matters.
Article 23.14: Labor Council
1. The Parties hereby establish a Labor Council composed of senior governmental
representatives at the ministerial or other level from trade and labor ministries, as designated by
each Party.
2. The Labor Council shall meet within one year of the date of entry into force of this
Agreement and thereafter every two years, unless the Parties decide otherwise.
3. The Labor Council may consider any matter within the scope of this Chapter and perform
other functions as the Parties may decide.
4. In conducting its activities, including meetings, the Labor Council shall provide a means
for receiving and considering the views of interested persons on matters related to this Chapter. If
practicable, meetings will include a public session or other means for Council members to meet
with the public to discuss matters relating to the implementation of this Chapter.
5. During the fifth year after the date of entry into force of this Agreement, or as otherwise
decided by the Parties, the Labor Council shall review the operation and effectiveness of this
Chapter and thereafter may undertake subsequent reviews as decided by the Parties.
6. Labor Council decisions and reports shall be made by consensus and be made publicly
available, unless the Council decides otherwise.
7. The Labor Council shall issue a joint summary report or statement on its work at the end
of each Council meeting.
Article 23.15: Contact Points
1. Each Party shall designate, within 60 days of the date of entry into force of this Agreement,
an office or official within its labor ministry or equivalent entity as a contact point to address
matters related to this Chapter. Each Party shall notify the other Parties in writing promptly in the
event of a change to its contact point.
2. The contact points shall:
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(a) facilitate regular communication and coordination between the Parties, including
responding to requests for information and providing sufficient information to
enable a full examination of matters related to this Chapter;
(b) assist the Labor Council;
(c) report to the Labor Council, as appropriate;
(d) act as a channel for communication with the public in their respective territories;
and
(e) work together, including with other appropriate agencies of their governments, to
develop and implement cooperative activities, guided by the priorities of the Labor
Council, areas of cooperation identified in Article 23.12.5 (Cooperation), and the
needs of the Parties.
3. Contact points may communicate and coordinate activities in person or through electronic
or other means of communication.
4. Each Party’s contact point, in carrying out its responsibilities under this Chapter, shall
regularly consult and coordinate with its trade ministry.
Article 23.16: Public Engagement
Each Party shall establish or maintain, and consult with, a national labor consultative or
advisory body or similar mechanism, for members of its public, including representatives of its
labor and business organizations, to provide views on matters regarding this Chapter.
Article 23.17: Labor Consultations
1. The Parties shall make every effort through cooperation and dialogue to arrive at a mutually
satisfactory resolution of any matter arising under this Chapter.
2. A Party (the requesting Party) may request labor consultations with another Party (the
responding Party) regarding any matter arising under this Chapter by delivering a written request
to the responding Party’s contact point. The requesting Party shall include information that is
specific and sufficient to enable the responding Party to respond, including identification of the
matter at issue and an indication of the legal basis of the request under this Chapter.
3. A third Party that considers it has a substantial interest in the matter may participate in the
labor consultations by notifying the other Parties (the consulting Parties) in writing through their
respective contact points, no later than seven days after the date of delivery of the request for labor
23-14
consultations. The third Party shall include in its notice an explanation of its substantial interest
in the matter.
4. Unless the consulting Parties decide otherwise, they shall enter into labor consultations no
later than 30 days after the date of delivery of the request.
5. The consulting Parties shall make every effort to arrive at a mutually satisfactory resolution
of the matter through labor consultations, which may include appropriate cooperative activities.
The consulting Parties may request advice from independent experts chosen by the consulting
Parties to assist them.
6. Ministerial Labor Consultations: If the consulting Parties have failed to resolve the matter,
a consulting Party may request that the relevant Ministers or their designees of the consulting
Parties convene to consider the matter at issue by delivering a written request to the other
consulting Party through its contact point. The Ministers of the consulting Parties shall convene
promptly after the date of receipt of the request, and shall seek to resolve the matter, including, if
appropriate, by consulting independent experts chosen by the consulting Parties to assist them, and
having recourse to procedures such as good offices, conciliation, or mediation.
7. If the consulting Parties are able to resolve the matter, they shall document the outcome,
including, if appropriate, specific steps and timelines decided upon. The consulting Parties shall
make the outcome available to the other Party and to the public, unless they decide otherwise.
8. If the consulting Parties fail to resolve the matter within 75 days after the date of receipt of
a request for Labor consultations under paragraph 2, or any other period as the consulting Parties
may agree, the requesting Party may request the establishment of a panel under Article 31.6
(Establishment of a Panel).
9. Labor consultations shall be confidential and without prejudice to the rights of a Party in
another proceeding.
10. Labor consultations pursuant to this Article may be held in person or by any technological
means available to the consulting Parties. If the labor consultations are held in person, they must
be held in the capital of the Party to which the request for labor consultations was made, unless the
consulting Parties decide otherwise.
11. In labor consultations under this Article, a consulting Party may request another consulting
Party to make available personnel of its government agencies or other regulatory bodies who have
expertise in the matter at issue.
12. No Party shall have recourse to dispute settlement under Chapter 31 (Dispute Settlement)
for a matter arising under this Chapter without first seeking to resolve the matter in accordance
with this Article.
23-15
13. A Party may have recourse to labor consultations under this Article without prejudice to
the commencement or continuation of Cooperative Labor Dialogue under Article 23.13
(Cooperative Labor Dialogue).
23-A-1
ANNEX 23-A
WORKER REPRESENTATION IN COLLECTIVE BARGAINING IN MEXICO
1. Mexico shall adopt and maintain the measures set out in paragraph 2, which are necessary
for the effective recognition of the right to collective bargaining, given that the Mexican
government incoming in December 2018 has confirmed that each of these provisions is within
the scope of the mandate provided to the government by the people of Mexico in the elections.
2. Mexico shall:
(a) Provide in its labor laws the right of workers to engage in concerted activities for
collective bargaining or protection and to organize, form, and join the union of their
choice, and prohibit, in its labor laws, employer domination or interference in union
activities, discrimination, or coercion against workers for union activity or support,
and refusal to bargain collectively with the duly recognized union.
(b) Establish and maintain independent and impartial bodies to register union elections
and resolve disputes relating to collective bargaining agreements and the
recognition of unions, through legislation establishing:
(i) an independent entity for conciliation and registration of unions and
collective bargaining agreements, and
(ii) independent Labor Courts for the adjudication of labor disputes.
The legislation shall provide for the independent entity for conciliation and
registration to have the authority to issue appropriate sanctions against those who
violate its orders. The legislation also shall provide that all decisions of the
independent entity are subject to appeal to independent courts, and that officials of
the independent entity who delay, obstruct, or influence the outcome of any
registration process in favor or against a party involved, will be subject to sanctions
under Article 48 of the Federal Labor Law (Ley Federal del Trabajo) and Articles
49, 52, 57, 58, 61, 62 and other applicable provisions of the General Law of
Administrative Responsibilities (Ley General de Responsabilidades
Administrativas).
(c) Provide in its labor laws, through legislation in accordance with Mexico’s
Constitution (Constitución Política de los Estados Unidos Mexicanos), for an
effective system to verify that elections of union leaders are carried out through a
personal, free, and secret vote of union members.
(d) Provide in its labor laws that union representation challenges are carried out by the
23-A-2
Labor Courts through a secret ballot vote, and are not subject to delays due to
procedural challenges or objections, including by establishing clear time limits and
procedures, consistent with Mexico’s obligations under Article 23.10.3(c) and
Article 23.10.10(c) (Public Awareness and Procedural Guarantees).
(e) Adopt legislation in accordance with Mexico’s Constitution (Constitución
Política de los Estados Unidos Mexicanos), requiring:
(i) verification by the independent entity that collective bargaining agreements
meet legal requirements related to worker support in order for them to be
registered and take legal effect; and
(ii) for the registration of an initial collective bargaining agreement, majority
support, through exercise of a personal, free, and secret vote of workers
covered by the agreement and effective verification by the independent
entity, through, as justified under the circumstances, documentary evidence
(physical or electronic), direct consultations with workers, or on-site
inspections that:
(A) the worksite is operational,
(B) a copy of the collective bargaining agreement was made readily
accessible to individual workers prior to the vote, and
(C) a majority of workers covered by the agreement demonstrated
support for the agreement through a personal, free, and secret vote.
(f) Adopt legislation in accordance with Mexico’s Constitution (Constitución Política
de los Estados Unidos Mexicanos), which provides that, in future revisions to
address salary and work conditions, all existing collective bargaining agreements
shall include a requirement for majority support, through the exercise of personal,
free, and secret vote of the workers covered by those collective bargaining
agreements.
The legislation shall also provide that all existing collective bargaining agreements
shall be revised at least once during the four years after the legislation goes into
effect. The legislation shall not imply the termination of any existing collective
bargaining agreements as a consequence of the expiration of the term indicated in
this paragraph, as long as a majority of the workers covered by the collective
bargaining agreement demonstrate support for such agreement through a personal,
free, and secret vote.
The legislation shall also provide that the revisions must be deposited with the
independent entity. In order to deposit the future revisions, the independent entity
23-A-3
shall effectively verify, through, as justified under the circumstances, documentary
evidence (physical or electronic), direct consultation with workers, or on-site
inspections that:
(i) a copy of the revised collective bargaining agreement was made readily
accessible to the workers covered by the collective bargaining agreement
prior to the vote, and
(ii) a majority of workers covered by the revised agreement demonstrated
support for that agreement through a personal, free, and secret vote.
(g) Provide in its labor laws:
(i) that each collective bargaining agreement negotiated by a union and a
union’s governing documents are made available in a readily accessible
form to all workers covered by the collective bargaining agreement, through
enforcement of Mexico’s General Law on Transparency and Access to
Public Information (Ley General de Transparencia y Acceso a la
Información Pública), and
(ii) for the establishment of a centralized website that provides public access to
all collective bargaining agreements in force and that is operated by an
independent entity that is in charge of the registration of collective
bargaining agreements.
3. It is the expectation of the Parties that Mexico shall adopt legislation described above
before January 1, 2019. It is further understood that entry into force of this Agreement may be
delayed until such legislation becomes effective.
Document No. 301
HRC, CCPR/C/79/Add.104 (1999), Consideration of
reports submitted by States parties under article 40
of the Covenant, para. 25
Document No. 302
HRC, CCPR/CO/80/LTU (2004), Consideration of
reports submitted by States parties under article 40
of the Covenant, para. 18
UNITED
NATIONS CCPR
International covenant
on civil and
political rights
Distr.
GENERAL
CCPR/CO/80/LTU
4 May 2004
Original: ENGLISH
HUMAN RIGHTS COMMITTEE
Eightieth session
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT
Concluding observations of the Human Rights Committee
LITHUANIA
1. The Committee considered the second periodic report of Lithuania
(CCPR/C/LTU/2003/2) at its 2181st and 2182nd meetings, on 24 and 25 March 2004, and
subsequently adopted, at the 2192nd meeting, held on 1 April 2004 the following concluding
observations.
A. Introduction
2. The Committee welcomes the second report of Lithuania and expresses its appreciation
for a frank and constructive discussion with the delegation. It welcomes the concise nature of
the report and pertinent information provided on the practical implementation of legislation.
B. Positive aspects
3. The Committee appreciates the ongoing efforts of the State party to reform its legal
system and revise its legislation so that the protection they offer is in accordance with the
Covenant. In particular, it welcomes the establishment of the Parliamentary Committee on
Human Rights and the adoption of three ombudsmen institutions: the Parliamentary
Ombudsmen, the Ombudsman for Equal Opportunities and the Ombudsman for the Rights of the
Child. The Committee encourages the State party to extend the powers of the latter two
Ombudsmen to enable them to bring court actions in the same way as the Parliamentary
Ombudsmen.
GE.04-41255 (E) 060504
CCPR/CO/80/LTU
page 5
16. The Committee reiterates the concern expressed in its concluding observations on the
State party’s previous report that the registration process continues to make distinctions between
different religions, and that this amounts to unequal treatment contrary to articles 18 and 26. It
notes that religious communities that do not meet the registration criteria are disadvantaged in
that they may not register as legal persons and, therefore, as acknowledged by the delegation,
may face certain difficulties, inter alia with respect to the restitution of property.
The State party should ensure that there is no discrimination in law or in practice in
the treatment of different religions.
17. The Committee reiterates the concern expressed in its concluding observations on the
previous report about conditions of alternative service available to conscientious objectors to
military service, in particular with respect to the eligibility criteria applied by the Special
Commission and the duration of such service as compared with military service.
The Committee recommends that the State party clarify the grounds and eligibility
for performing alternative service to persons objecting to military service on
grounds of conscience or religious belief, to ensure that the right to freedom of
conscience and religion is respected by permitting in practice alternative service
outside the defence forces, and that the duration of service is not punitive in nature
(arts. 18 and 26).
18. The Committee is concerned that the new Labour Code is too restrictive in providing,
inter alia, for the prohibition of strikes in services that cannot be considered as essential and
requiring a two-thirds majority to call a strike, which may amount to a violation of article 22.
The State party should make the necessary amendments to the Labour Code to
ensure the protection of the rights guaranteed under article 22 of the Covenant.
19. The State party should disseminate widely the text of its second periodic report, the
replies provided to the Committee’s list of issues and the present concluding observations.
20. In accordance with article 70, paragraph 5, of the Committee’s rules of procedure, the
State party should provide, within one year, relevant information on the implementation of the
Committee’s recommendations in paragraphs 7, 9 and 13 above. The Committee requests that
information concerning the remainder of its recommendations be included in the third periodic
report, to be submitted by 1 April 2009.
-----
Document No. 303
HRC, CCPR/C/EST/CO/3 (2010), Consideration of
reports submitted by States parties under article 40
of the Covenant, para. 15
United Nations CCPR/C/EST/CO/3
International Covenant on
Civil and Political Rights
Distr.: General
4 August 2010
Original: English
Human Rights Committee
Ninety-ninth session
Geneva, 12–30 July 2010
Consideration of reports submitted by States parties under
article 40 of the Covenant
Concluding observations of the Human Rights Committee
Estonia
1. The Committee considered the third periodic report submitted by Estonia
(CCPR/C/EST/3) at its 2715th and 2716th meetings, held on 12 and 13 July 2010
(CCPR/C/SR.2715 and CCPR/C/SR.2716), and adopted the following concluding
observations at its 2736th meeting (CCPR/C/SR. 2736), held on 27 July 2010.
A. Introduction
2. The Committee welcomes the timely submission of the third report of Estonia and
expresses its appreciation for the constructive dialogue that the Committee had with the
delegation. It welcomes the detailed information provided on measures adopted by the State
party and on its forthcoming plans to further implement the Covenant. The Committee is
also grateful to the State party for the written replies submitted in advance in response to
the Committee’s written questions, as well as for the additional detailed information
provided orally and in writing by the delegation.
B. Positive aspects
3. The Committee, which notes the sustained commitment by the State party to the
protection of human rights, welcomes the following legislative and other measures:
(a) The adoption of a new Code of Criminal Procedure, which entered into force
in 2004;
(b) The adoption of the Victim Support Act, which entered into force in 2004;
(c) The amendment to the Penal Code (sect. 133), which entered into force in
2007, which improves the definition of elements of enslavement;
GE.10-44092
CCPR/C/EST/CO/3
The State party should review its legislation and practice in order to broaden
the rights of persons living in same-sex relationship, in particular to facilitate the
granting of a residence permit to non-citizens in same-sex partnership with a partner
already residing in the State party.
11. While noting that a person whose asylum application has been rejected can appeal
before an administrative court, the Committee remains concerned that according to the Act
on Granting International Protection to Aliens, the appeal has no suspensive effect (art. 2,
13).
The Committee reiterates its recommendation that a decision declaring an
asylum application inadmissible should not entail the denial of a suspensive effect
upon appeal.
12. The Committee is concerned that mentally disabled persons or their legal guardians,
where appropriate, are often denied the right to be sufficiently informed about criminal
proceedings and charges against them, the right to a fair hearing and the right to adequate
and effective legal assistance. The Committee is further concerned by the fact that experts
appointed to assess a patient’s need for continued coercive treatment work in the same
hospital as the one in which the patient is held (art. 14).
The State party should guarantee that mentally disabled persons or their legal
guardians, where appropriate, are sufficiently informed about criminal proceedings
and charges against them and enjoy the right to a fair hearing and the right to
adequate and effective legal assistance for their defence. It should also ensure that
experts appointed to assess patients’ need of continued coercive treatment are
impartial. Furthermore, the State party should provide training to judges and lawyers
on the rights which ought to be guaranteed to mentally disabled persons tried in
criminal courts.
13. While noting the improvements in the Code of Criminal Procedure to reduce the
length of criminal proceedings, the Committee remains concerned that there are no special
provisions for criminal proceedings, when the person indicted is detained (art. 14).
The State party should review its Code of Criminal Procedure in order to insert
provisions stipulating the need to expedite proceedings where the accused persons are
being detained.
14. The Committee is concerned that few of the applications for an alternative to
military service have been approved during the last few years (11 of 64 in 2007, 14 of 68 in
2008, 32 of 53 in 2009). It is also concerned about the lack of clear grounds for accepting
or rejecting an application for an alternative to military service (art. 18, 26).
The State party should clarify the grounds under which applications for an
alternative to military service are accepted or rejected and take relevant measures to
ensure that the right to conscientious objection is upheld.
15. While noting that the present draft Public Service Act presented to Parliament
includes a provision restricting the number of public servants not authorized to strike, the
Committee is concerned that public servants who do not exercise public authority do not
fully enjoy the right to strike (art. 22).
The State party should ensure in its legislation that only the most limited
number of public servants is denied the right to strike.
16. While noting the implementation of the “Integration in the Estonian society 2000–
2007” programme and the “Estonian Integration 2008–2013” programme by the State
party, the Committee is concerned that the Estonian language proficiency requirements
continue to impact negatively on employment and income levels for members of the
4
Document No. 304
HRC, CCPR/C/DOM/CO/6 (2017), Concluding
observations on the sixth periodic report of the
Dominican Republic, paras 31–32
GE.17-20972 (E) 271217 281217
Human Rights Committee
Concluding observations on the sixth periodic report of the
Dominican Republic*
1. The Committee considered the sixth periodic report of the Dominican Republic
(CCPR/C/DOM/6) at its 3416th and 3417th meetings (see CCPR/C/SR.3416 and 3417),
held on 16 and 17 October 2017. At its 3441st meeting (see CCPR/C/SR.3441), held on 3
November 2017, it adopted the present concluding observations.
A. Introduction
2. The Committee welcomes the submission of the sixth periodic report of the
Dominican Republic and the information presented therein. It expresses appreciation for the
opportunity to renew its constructive dialogue with the State party’s delegation on the
measures taken to implement the provisions of the Covenant during the reporting period.
The Committee is grateful to the State party for its written replies
(CCPR/C/DOM/Q/6/Add.1) to the list of issues (CCPR/C/DOM/Q/6), which were
supplemented by the oral responses provided by the delegation, and for the additional
information provided to it in writing.
B. Positive aspects
3. The Committee welcomes the legislative and institutional measures taken by the
State party during the period under review in the area of civil and political rights, including:
(a) The adoption of the Organic Act on Equal Rights for Persons with
Disabilities No. 5-13 of 2013 and the associated implementing regulations of 2016;
(b) The establishment of the system for tracking the implementation of United
Nations recommendations in order to compile recommendations by United Nations bodies;
(c) The adoption of the Organic Act on the National Police No. 590-16 of 2016
and the regulations on the use of force.
4. The Committee welcomes the State party’s accession to/ratification of the following
international instruments:
(a) The Second Optional Protocol to the International Covenant on Civil and
Political Rights, aiming at the abolition of the death penalty, acceded to on 21 September
2016;
(b) The Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict, ratified on 14 October 2016.
* Adopted by the Committee at its 121st session (16 October–10 November 2017).
United Nations CCPR/C/DOM/CO/6
International Covenant on
Civil and Political Rights
Distr.: General
27 November 2017
English
Original: Spanish
CCPR/C/DOM/CO/6
GE.17-20972 7
Corruption
29. The Committee is concerned about reports of high corruption rates in the State party
at all levels of government, including allegations of bribes being paid to access basic
services and to influence government officials, and about the impunity surrounding some of
these cases (art. 25).
30. The State party should step up efforts to fight and eradicate corruption and
impunity at all levels, including through the investigation of cases, most importantly
by the Public Prosecution Service, and the appropriate punishment of those
responsible, taking into account the recommendations of the Conference of the States
Parties to the United Nations Convention against Corruption in respect of the
Criminal Code, bribery and misappropriation of funds by public officials.
Freedom of expression, freedom of association and violence against human rights
defenders and journalists
31. The Committee is concerned at the acts of violence and intimidation to which human
rights defenders and journalists, including those who oppose Constitutional Court ruling No.
TC/0168/13, are subjected. It regrets the lack of information on the steps taken to safeguard
the right of migrant workers to freedom of assembly and association, which includes the
right to engage in trade union activities without the exercise of these rights triggering the
loss of their employment or their deportation. The Committee is further concerned at
reports that the right to freedom of association and the right to organize are restricted by
employers and supervisors (arts. 6, 7, 19, 21 and 22).
32. The State party should pursue its efforts to guarantee the effective protection of
human rights defenders and journalists who are victims of threats, violence and
intimidation. It should also ensure that these incidents are investigated promptly,
thoroughly, independently and impartially, that the perpetrators are tried and
punished with appropriate penalties and that the victims receive assistance, protection
and comprehensive reparation. Furthermore, it should ensure that migrant workers
effectively enjoy their right to freedom of peaceful assembly and that the exercise of
this right does not become justification for dismissal or deportation. The State party
should adopt measures to safeguard workers’ freedom of association in practice,
including the right to organize, the right to collective bargaining and the right to
strike.
Rights of the child and birth certificates
33. While it notes the State party’s efforts to increase birth registrations, the Committee
is concerned at the low rate of registration, especially in cases where one of the parents
does not hold Dominican nationality. It is also concerned at reports of barriers and
unreasonable requirements for the registration of children of Haitian descent, including
when one of the parents is of Dominican origin, putting them at risk of statelessness and
limiting the exercise of their rights. It is further concerned that children born in the
Dominican Republic to parents of Haitian descent or to foreign parents who are in an
irregular situation are registered as foreigners. The Committee is also concerned at the
prevalence of child marriage, particularly in rural and poor areas (arts. 16, 23 and 24).
34. The State party should continue efforts to ensure that all children born in its
territory, including those who were not born in a hospital or whose parents are not of
Dominican nationality, are registered and issued with an official birth certificate.
Furthermore, it should ensure that Dominican nationality is recognized and granted
in keeping with the principle of non-discrimination. In addition, it should take the
necessary steps to eradicate child marriage in law and in practice, including through
the adoption of legislative measures to introduce an absolute ban and to raise the
minimum marriage age from 16 to 18 years for both spouses.
Document No. 305
HRC, CCPR/C/EST/CO/4 (2019), Concluding
observations on the fourth periodic report of Estonia,
paras 31–32
GE.19-06541(E)
Human Rights Committee
Concluding observations on the fourth periodic report of
Estonia*
1. The Committee considered the fourth periodic report of Estonia (CCPR/C/EST/4) at
its 3570th and 3571st meetings (see CCPR/C/SR.3570 and 3571), held on 4 and 5 March
2019. At its 3596th meeting, held on 21 March 2019, it adopted the present concluding
observations.
A. Introduction
2. The Committee is grateful to the State party for having accepted the simplified
reporting procedure and for submitting its fourth periodic report in response to the list of
issues prior to reporting prepared under that procedure (CCPR/C/EST/QPR/4). It expresses
appreciation for the opportunity to renew its constructive dialogue with the State party’s
delegation on the measures taken during the reporting period to implement the provisions of
the Covenant. The Committee thanks the State party for the oral responses provided by the
delegation and for the supplementary information provided to it in writing.
B. Positive aspects
3. The Committee welcomes the following legislative, institutional and policy
measures taken by the State party:
(a) The amendments to the Victim Support Act, on 1 January 2017;
(b) The adoption of the national action plan for implementation of European
Union emergency relocation and resettlement schemes;
(c) The adoption of the Welfare Development Plan for 2016–2023.
4. The Committee welcomes the ratification of, or accession to, the following
international instruments by the State party:
(a) The Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict, on 12 February 2014;
(b) The Convention on the Rights of Persons with Disabilities and the Optional
Protocol thereto, on 30 May 2012.
* Adopted by the Committee at its 125th session (4–29 March 2019).
United Nations CCPR/C/EST/CO/4
International Covenant on
Civil and Political Rights
Distr.: General
18 April 2019
Original: English
CCPR/C/EST/CO/4
7
Freedom of association
31. While welcoming the significantly lower number of civil servants affected by a
prohibition of strike action following the amendments to the Civil Service Act in 2013, the
Committee echoes the concern of the Committee on Economic, Social and Cultural Rights
regarding the strike ban on civil servants under the Act (E/C.12/EST/CO/3, para. 26). The
Committee is also concerned about the requirements set forth in the Collective Labour
Dispute Resolution Act that may adversely affect the meaningful exercise of the right to
strike in practice, inter alia by limiting the duration of a warning strike to one hour as
opposed to three days for sympathy strikes (art. 22).
32. The Committee reiterates the recommendation made by the Committee on
Economic, Social and Cultural Rights (E/C.12/EST/CO/3, para. 27) that the Civil
Service Act be reviewed with a view to allowing civil servants who do not provide
essential services to exercise their right to strike. The State party should refrain from
imposing any undue limitations on the right to strike and should ensure that the
Collective Labour Dispute Resolution Act is in full conformity with article 22 of the
Covenant.
Prisoners’ right to vote
33. The Committee is concerned about the general denial of the right to vote to all
prisoners convicted of any criminal offence, and recalls that a blanket denial does not meet
the requirements of article 10 (3), read in conjunction with article 25, of the Covenant.
While noting that the issue has been addressed by the authorities, including by the Supreme
Court in the context of several court cases, and that steps towards amending relevant
legislation have been taken, the Committee regrets that progress in that regard remains slow
(arts. 10, 25 and 26).
34. The State party should review its legislation that denies convicted prisoners the
right to vote in the light of the Committee’s general comment No. 25 (1996) on
participation in public affairs and the right to vote (para. 14).
Nationality
35. While welcoming the measures taken to resolve the situation of persons “with
undetermined citizenship”, including the 2015 amendments to the Citizenship Act granting
children with undetermined citizenship born in Estonia the right to automatically acquire
Estonian citizenship, the Committee remains concerned at (a) the limited scope of the
amendments insofar as they exclude certain categories of stateless children; (b) the
stringent language requirements that form part of the naturalization tests; and (c) the
adverse impact of the “undetermined citizenship” status on the right of long-term residents
to political participation (arts. 24, 25 and 26).
36. The State party should strengthen its efforts to reduce and prevent statelessness
by addressing the remaining gaps, including by:
(a) Establishing a statelessness determination procedure that ensures that
stateless individuals are systematically identified and afforded protection;
(b) Facilitating the naturalization of persons with “undetermined
citizenship” and removing excessive barriers that hinder the process;
(c) Ensuring that every child has a nationality, in accordance with article 24
(3) of the Covenant, including by granting citizenship to stateless children aged
between 15 and 18 as at 1 January 2016 and to children born to stateless parents,
irrespective of their legal status.
Rights of minorities
37. While welcoming the measures taken and the progress made with regard to the
integration of the Russian-speaking minority, including the improved proficiency in
Estonian language, the Committee remains concerned at the remaining gaps
(CCPR/C/EST/CO/3, para. 16), particularly those relating to the impact of the language
Document No. 306
CESCR, E/C.12/1/Add.68 (2001), Concluding
observations, Germany, paras 22, 40
UNITED
NATIONS
E
Economic and Social
Council
Distr.
GENERAL
E/C.12/1/Add.68
24 September 2001
Original: ENGLISH
COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Twenty-sixth (extraordinary) session
13-31 August 2001
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER
ARTICLES 16 AND 17 OF THE COVENANT
Concluding observations of the Committee on
Economic, Social and Cultural Rights
GERMANY
1. The Committee on Economic, Social and Cultural Rights considered the fourth periodic
report of Germany on the implementation of the International Covenant on Economic, Social and
Cultural Rights (E/C.12/4/Add.3) at its 48th and 49th meetings (E/C.12/2001/48 and 49), held
on 24 August 2001, and adopted, at its 58th meeting (E/C.12/2001/58), held on 31 August 2001,
the following concluding observations.
A. Introduction
2. The Committee welcomes the third periodic report of the State party, which was prepared
in general conformity with the Committee’s guidelines.
3. The Committee notes with appreciation the high quality of the extensive written and oral
replies given by the State party, as well as the open and constructive dialogue with the
delegation, which included government officials with expertise in the subjects relevant in the
context of the Covenant.
GE.01-44776 (E)
E/C.12/1/Add.68
page 3
13. The Committee reiterates its concern about the lack of any court decisions in which
reference is made to the Covenant and its provisions, as indicated by the statement made by the
State party in its written replies to the list of issues and as confirmed by the delegation during its
dialogue with the Committee. The Committee is concerned that judges are not provided with
adequate training on human rights, in particular on the rights guaranteed in the Covenant. A
similar lack of human rights training is discerned among prosecutors and other actors responsible
for the implementation of the Covenant.
14. The Committee expresses its concern that there is no comprehensive and consistent
system in place that ensures that the Covenant is taken into account in the formulation and
implementation of all legislation and policies concerning economic, social and cultural rights.
15. The Committee regrets that, according to UNDP, the State party devoted 0.26 per cent of
its GNP to official development assistance (ODA) in 1998, well below the goal of 0.7 per cent
set by the United Nations.
16. The Committee is concerned about the considerable length of time taken to process
applications for asylum, resulting in the limitation of the enjoyment of the economic, social and
cultural rights enshrined in the Covenant by asylum-seekers and their dependents.
17. The Committee is concerned that, despite the great efforts made by the State party to
narrow the gap between the new and the old Länder, considerable differences continue to exist,
particularly in terms of generally lower standards of living, a higher unemployment rate, and
lower wages for civil servants in the new Länder.
18. The Committee expresses its concern about the high levels of unemployment that
continue to persist in the State party, especially among the youth. The problem of youth
unemployment is particularly grave in the new Länder, resulting in the migration of young
persons to the old Länder. The Committee is further concerned that vocational training
programmes for the youth are not adequately adapted to their needs.
19. Like the ILO, the Committee is concerned about the persisting impediments to women in
German society, in terms of promotion in employment and equal wages for work of equal value,
both in the private and public sectors, and especially in federal bodies and academic institutions,
despite the efforts of the State party to give a new impetus to the equal participation of women in
the labour market.
20. The Committee is concerned that the State party has not adequately addressed the issue
of illegal workers who are employed in the “shadow economy”, such as workers in households,
hotel and catering industries, agriculture and the cleaning and building industries, who do not
enjoy any rights or protection and do not get paid regularly or adequately.
21. The Committee is concerned that prisoners who undertake labour for private companies
may be doing so without having expressed their prior consent.
22. The Committee reiterates its concern, in line with the Human Rights Committee and the
ILO Committee of Experts, that the prohibition by the State party of strikes by public servants
E/C.12/1/Add.68
page 4
other than public officials who do not provide essential services, such as judges, so-called
Beamte and teachers, constitutes a restriction of the activities of trade unions that is beyond the
scope of article 8 (2) of the Covenant. The Committee disagrees with the State party’s statement
that “a strike would be incompatible with this duty of loyalty and would run counter to the
purpose of a professional civil service” (E/C.12/4/Add.3, para. 82), as this interpretation of “the
administration of the State” mentioned in article 8 (2) of the Covenant exceeds the more
restrictive interpretations by the Committee, the ILO (Convention No. 98) and the European
Court of Justice.
23. The Committee is concerned that the State party’s reformed social security, and the
pension system under reform, do not take sufficiently into consideration the needs of families,
women, elderly persons and the more disadvantaged groups in society. The Committee notes
that the pension reform is currently still in progress, but that the Federal Constitutional Court
recently referred to potential discrimination against families under the scheme as envisaged.
24. The Committee expresses its grave concern about inhumane conditions in nursing homes
owing to structural deficiencies in nursing, as confirmed by the Medical Service of the national
associations of health insurances (MDS).
25. The Committee is concerned that the victims of trafficking in persons, and in particular
women, are doubly victimized, owing to a lack of sensitization of police, judges and public
prosecutors, a lack of appropriate care for victims, and the risks and dangers awaiting them upon
deportation to their home countries.
26. The Committee is concerned about the shortage of child day care institutions, which
constitutes an obstacle to women’s equal participation in the labour market, as well as to the
State party’s efforts to promote gender equality.
27. The Committee reiterates its concern that the State party has not yet established a
definition of poverty, nor a poverty threshold. The Committee is particularly concerned about
the fact that social assistance provided to the poor and socially excluded - such as single parents,
students and disabled pensioners - under the Federal Social Assistance Act is not commensurate
with an adequate standard of living.
28. The Committee reiterates its concern about the rising number and plight of homeless
persons in Germany, as mentioned in the Committee’s concluding observations of 1998.
29. The Committee is concerned that several Länder have abandoned the principle of free
higher education by requiring the payment of fees, which in some cases are allocated to cover
administrative costs of the Länder, and not university expenditure.
E. Suggestions and recommendations
30. Given the limited functions and powers of the DIMR, the Committee recommends that
the State party take steps either to extend the Institute’s functions and powers, or to establish a
separate national human rights institution with broad functions and powers, such as those
indicated in paragraph 12. In the meantime, the Committee recommends that the DIMR,
E/C.12/1/Add.68
page 6
39. The Committee recommends that the State party undertake measures to ensure that
prisoners working for private companies do so after having expressed their prior consent.
40. The Committee reiterates its recommendation to the State party that it ensure that civil
servants who do not provide essential services have the right to strike, in accordance with
article 8 of the Covenant.
41. The Committee urges the State party to ensure that the reformed social security system,
and the pension system under reform, take into account the situation and needs of disadvantaged
and vulnerable groups in society. In particular, the Committee strongly urges the State party to
address the problems and deficiencies emerging in the implementation of the long-term
insurance scheme. The Committee requests the State party to provide detailed information on
the results of the implementation of the reformed pension scheme in its next periodic report.
42. The Committee also urges the State party to adopt urgent measures to improve the
situation of patients in nursing homes.
43. The Committee strongly recommends that the State party undertake training programmes
for those dealing with victims of trafficking in persons to ensure that they are sensitized to the
needs of the victims, to provide better protection and appropriate care, and to ensure that victims
can claim redress before courts of law.
44. The Committee recommends that the State party increase the availability of child day
care institutions, especially in the western Länder.
45. The Committee urges the State party to establish a poverty threshold for its territory,
taking into account the parameters used in the State party’s first poverty and prosperity report, as
well as international definitions of poverty, including the one adopted in the Committee’s
statement on poverty. In particular, the Committee urges the State party to ensure that social
assistance provided under the Federal Social Assistance Act is commensurate with an adequate
standard of living.
46. The Committee also urges the State party to take effective measures, and to devise
programmes, to examine the extent and causes of homelessness in Germany and to ensure an
adequate standard of living for the homeless.
47. The Committee recommends that the State party’s Federal Government introduce a
reduction of tuition fees in the national framework legislation regulating higher education, with a
view to abolishing them. The Committee requests the State party to provide detailed and
updated information and comparative statistical data on the quality of tertiary education, such as
class sizes, in its next periodic report. The Committee also requests the State party to provide
up-to-date information in its next periodic report on the extent of human rights education in the
German education system.
Document No. 307
CESCR, E/C.12/1/Add.81 (2002), Concluding
observations, Slovakia, para. 27
UNITED
NATIONS E
Economic and Social
Council
Distr.
GENERAL
E/C.12/1/Add.81
19 December 2002
Original: ENGLISH
COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Twenty-ninth session
11-29 November 2002
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLES 16 AND 17 OF THE COVENANT
Concluding observations of the Committee on
Economic, Social and Cultural Rights
SLOVAKIA
1. The Committee considered the initial report of Slovakia on the implementation of the
Covenant (E/1990/5/Add.49) at its 30th, 31st and 32nd meetings, held on 12
and 13 November 2002 (see E/C.12/2002/SR.30-32), and adopted, at its 56th meeting, held
on 29 November 2002, the following concluding observations.
A. Introduction
2. The Committee welcomes the submission of the initial report of the State party, which
was prepared generally in conformity with the Committee’s guidelines.
3. The Committee notes with appreciation the comprehensive written and oral replies given
by the State party, as well as the open and candid constructive dialogue with the delegation,
which included a number of government officials with expertise on the subjects relevant to the
provisions of the Covenant. The Committee also welcomes the willingness of the delegation to
provide further information in writing concerning the questions that could not be answered
during the dialogue.
GE.02-46370 (E) 070103
E/C.12/1/Add.81
page 4
27. The Committee recommends that the State party revise its legislation on the right to
strike, in line with article 8 of the Covenant and the relevant Conventions of the International
Labour Organization.
28. The Committee requests the State party to provide detailed information on the National
Programme in Poverty Combating and Social Exclusion and on the Slovak Social Protection
National Programme. The Committee urges the State party to fully integrate human rights,
including economic, social and cultural rights, in its poverty-reduction strategies. In this regard,
it draws the attention of the State party to the Committee’s Statement on Poverty, adopted by the
Committee on 4 May 2001.
29. The Committee calls upon the State party to enforce its legislation on domestic violence
and to take appropriate preventive measures in order to give the required assistance to victims of
domestic violence.
30. The Committee urges the State party to adopt effective measures, including through
regional cooperation, to combat trafficking in women and to adopt preventive programmes to
combat the sexual exploitation of women, adolescents and children.
31. The Committee calls upon the State party to adopt effective measures, including public
awareness campaigns, to reduce tobacco smoking and alcohol consumption.
32. The Committee requests the State party to provide, in its second periodic report,
information about the mentally ill, including the number of those hospitalized, the facilities
available to them and the legal safeguards for the protection against abuse and neglect of
patients.
33. The Committee urges the State party to intensify its efforts to increase the school
attendance of Roma children, especially at the primary level, and to address the problem of
dropouts among secondary school pupils. The Committee also recommends that the State party
collect and develop data, disaggregated by gender and ethnic origin, as stated in the Committee’s
General Comment No. 13, paragraph 7, for inclusion in its next periodic report.
34. The Committee encourages the State party to provide human rights education in schools
at all levels and to raise awareness about human rights, in particular economic, social and
cultural rights, among State officials and the judiciary.
35. The Committee requests the State party to disseminate the present concluding
observations widely at all levels of society and, in particular, among State officials and the
judiciary and to inform the Committee, in its next periodic report, of all steps taken to implement
them. It also encourages the State party to consult with non-governmental organizations and
other members of civil society in the preparation of the report.
36. The Committee requests the State party to submit its second periodic report
by 30 June 2007.
-----
Document No. 308
CESCR, E/C.12/GC/23 (2016), General comment No. 23
(2016) on the right to just and favourable conditions of
work (article 7 of the International Covenant
on Economic, Social and Cultural Rights), para. 1
GE.16-05357(E)
Committee on Economic, Social and Cultural Rights
General comment No. 23 (2016) on the right to just and
favourable conditions of work (article 7 of the International
Covenant on Economic, Social and Cultural Rights)
I. Introduction
1. The right of everyone to the enjoyment of just and favourable conditions of work is
recognized in the International Covenant on Economic, Social and Cultural Rights and
other international and regional human rights treaties,1 as well as related international legal
instruments, including conventions and recommendations of the International Labour
Organization (ILO).2 It is an important component of other labour rights enshrined in the
1 See Universal Declaration of Human Rights, arts. 23 and 24; International Convention on the
Elimination of All Forms of Racial Discrimination, art. 5; Convention on the Elimination of All
Forms of Discrimination against Women, art. 11; Convention on the Rights of the Child, art. 32;
International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families, art. 25; Convention on the Rights of Persons with Disabilities, art. 27; European
Social Charter (Revised), Part I, paras. 2, 3, 4, 7 and 8; and Part II, arts. 2, 3 and 4; Charter of
Fundamental Rights of the European Union, arts. 14, 23, 31 and 32; Additional Protocol to the
American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, art. 7;
and African Charter on Human and Peoples’ Rights, art. 15. The wording of the provisions in the
various treaties differs. The European instruments are broader in the protections offered, while the
African Charter includes the narrower requirement of “equal pay for equal work”.
2 Although many ILO conventions relate directly and indirectly to just and favourable conditions of
work, for the present general comment, the Committee has identified the following as relevant: Hours
of Work (Industry) Convention, 1919 (No. 1); Weekly Rest (Industry) Convention, 1921 (No. 14);
Minimum Wage-Fixing Machinery Convention, 1928 (No. 26); Hours of Work (Commerce and
Offices) Convention, 1930 (No. 30); Forty-Hour Week Convention, 1935 (No. 47); Protection of
Wages Convention, 1949 (No. 95); Minimum Wage Fixing Machinery (Agriculture) Convention,
1951 (No. 99); Equal Remuneration Convention, 1951 (No. 100); Weekly Rest (Commerce and
Offices) Convention, 1957 (No. 106); Discrimination (Employment and Occupation) Convention,
1958 (No. 111); Minimum Wage Fixing Convention, 1970 (No. 131); Holidays with Pay Convention
(Revised), 1970 (No. 132); Minimum Age Convention, 1973 (No. 138); Hours of Work and Rest
Periods (Road Transport) Convention, 1979 (No. 153); Occupational Safety and Health Convention,
1981 (No. 155); Protocol of 2002 to the Occupational Safety and Health Convention, 1981; Workers
with Family Responsibilities Convention, 1981 (No. 156); Night Work Convention, 1990 (No. 171);
Part-Time Work Convention, 1994 (No. 175); Maternity Protection Convention, 2000 (No. 183);
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Covenant and the corollary of the right to work as freely chosen and accepted. Similarly,
trade union rights, freedom of association and the right to strike are crucial means of
introducing, maintaining and defending just and favourable conditions of work.3 In turn,
social security compensates for the lack of work-related income and complements labour
rights.4 The enjoyment of the right to just and favourable conditions of work is a
prerequisite for, and result of, the enjoyment of other Covenant rights, for example, the
right to the highest attainable standard of physical and mental health, by avoiding
occupational accidents and disease, and an adequate standard of living through decent
remuneration.
2. The importance of the right to just and favourable conditions of work has yet to be
fully realized. Almost 50 years after the adoption of the Covenant, the level of wages in
many parts of the world remains low and the gender pay gap is a persistent and global
problem. ILO estimates that annually some 330 million people are victims of accidents at
work and that there are 2 million work-related fatalities.5 Almost half of all countries still
regulate weekly working hours above the 40-hour work week, with many establishing a
48-hour limit, and some countries have excessively high average working hours. In
addition, workers in special economic, free trade and export processing zones are often
denied the right to just and favourable conditions of work through non-enforcement of
labour legislation.
3. Discrimination, inequality and a lack of assured rest and leisure conditions plague
many of the world’s workers. Economic, fiscal and political crises have led to austerity
measures that claw back advances. The increasing complexity of work contracts, such as
short-term and zero-hour contracts, and non-standard forms of employment, as well as an
erosion of national and international labour standards, collective bargaining and working
conditions, have resulted in insufficient protection of just and favourable conditions of
work. Even in times of economic growth, many workers do not enjoy such conditions of
work.
4. The Committee is aware that the concept of work and workers has evolved from the
time of drafting of the Covenant to include new categories, such as self-employed workers,
workers in the informal economy, agricultural workers, refugee workers and unpaid
workers. Following up on general comment No. 18 on the right to work, and benefiting
from its experience in the consideration of reports of States parties, the present general
comment has been drafted by the Committee with the aim of contributing to the full
implementation of article 7 of the Covenant.
Convention concerning the Promotional Framework for Occupational Safety and Health, 2006 (No.
187); and Domestic Workers Convention, 2011 (No. 189).
3 Committee on Economic, Social and Cultural Rights general comment No. 18 (2005) on the right to
work, paragraph 2, indicates the interconnection between the right to work in a general sense in article
6 of the Covenant, the recognition of the individual dimension of the right to the enjoyment of just
and favourable conditions of work in article 7 and the collective dimension in article 8.
4 See Committee on Economic, Social and Cultural Rights general comment No. 19 (2007) on the right
to social security, para. 2.
5 According to ILO, the overall number of work-related fatal and non-fatal accidents and diseases
globally did not vary significantly during the period 1998 to 2008, although the global figure hides
variations among countries and regions.
Document No. 309
CESCR, E/C.12/DEU/CO/6 (2018), Concluding
observations on the sixth periodic report of Germany,
paras 44–45
GE.18-20343(E)
Committee on Economic, Social and Cultural Rights
Concluding observations on the sixth periodic report
of Germany*
1. The Committee on Economic, Social and Cultural Rights considered the sixth
periodic report of Germany (E/C.12/DEU/6) at its 31st and 32nd meetings (see
E/C.12/2018/SR.31 and 32), held on 25 September 2018, and adopted the present
concluding observations at its 58th meeting, held on 12 October 2018.
A. Introduction
2. The Committee welcomes the sixth report submitted by the State party and the
supplementary information provided in the replies to the list of issues
(E/C.12/DEU/Q/6/Add.1). The Committee also appreciates the constructive dialogue held
with the State party’s high-level, interministerial delegation.
B. Positive aspects
3. The Committee welcomes the legislative, institutional and policy measures taken to
ensure a high level of protection of economic, social and cultural rights in the State party, in
particular, the introduction of a national minimum wage in 2015 through the enactment of
the Act on the National Minimum Wage (Mindestlohngesetz).
C. Principal subjects of concern and recommendations
Ratification of the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights
4. The Committee welcomes the statement of the delegation of the State party that the
Government plans to ratify the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights, and it encourages the State party to expedite
ratification.
State party’s obligation in the context of the federal system
5. While noting that the federal system of the State party confers powers and
responsibilities, particularly those relating to the realization of the rights covered by the
Covenant, to the federal states (Länder), the Committee is concerned that the significant
disparities in the enjoyment of economic, social and cultural rights, inherited from the
division of Germany before 1990, continue to persist in spite of determined efforts by the
State party to overcome them. The Committee is also concerned about insufficient
* Adopted by the Committee at its sixty-fourth session (24 September–12 October 2018).
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work. The Committee draws the attention of the State party to paragraph 47 (f) of its
general comment No. 23 (2016) on the right to just and favourable conditions of work.
Right to strike of civil servants
44. The Committee remains concerned about the prohibition by the State party of strikes
by all public servants with civil servant status, including schoolteachers with this status.
This goes beyond the restrictions allowed under article 8 (2) of the Covenant, since not all
civil servants can reasonably be deemed to be providers of an essential service (art. 8).
45. The Committee reiterates its previous recommendation (E/C.12/DEU/CO/5,
para. 20) that the State party take measures to revise the scope of the category of
essential services with a view to ensuring that all those civil servants whose services
cannot reasonably be deemed as essential are entitled to their right to strike in
accordance with article 8 of the Covenant and with the International Labour
Organization (ILO) Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87).
Social security
46. The Committee is concerned that the level of the basic social benefits is not
sufficient to allow recipients and their families to enjoy an adequate standard of living. It is
also concerned at the calculation method of the subsistence level, which is based on a
sample survey of the expenditure of the lowest-income households and excludes some basic
costs. It is further concerned at the sanctions imposed on recipients of the basic social
benefits (Grundsicherung) for jobseekers under Book II of the Social Code, which cut the
benefits by 30 to 100 per cent and particularly affect young people, whose benefits are
removed entirely if they are found to have breached their duties (Pflichtverletzung). It
reiterates its concern at the definition of what is considered as “suitable” employment,
which jobseekers are expected to accept (arts. 6, 9 and 11).
47. The Committee recommends that the State party increase the level of the basic
social benefits by improving the calculation methods of the subsistence level, in the
light of the judgment of the Federal Constitutional Court of 23 July 2014. It urges the
State party to review the sanctions regime in order to ensure that the subsistence
minimum is always be applied. It also recommends that the State party expressly
define criteria for assessing the suitability of employment, in line with article 21 (2) of
the ILO Employment Promotion and Protection against Unemployment Convention,
1988 (No. 168). The Committee draws the attention of the State party to its general
comment No. 19 (2007) on the right to social security.
Care services for older persons
48. While welcoming the decision to create 13,000 new caregiver positions in hospitals,
the Committee is concerned at the chronic shortage of qualified caregivers for older persons
in the State party. It reiterates its concern at the situation of older persons living in
degrading conditions, including in some nursing homes, and who receive inadequate care
owing to a shortage of qualified caregivers (arts. 11 and 12).
49. The Committee recommends that the State party intensify its efforts to secure a
sufficient number of qualified caregivers for older persons, in accordance with the
World Health Organization Global Code of Practice on the International Recruitment
of Health Personnel, and ensure that such caregivers enjoy just and favourable
conditions of work. It reiterates its previous recommendations (E/C.12/DEU/CO/5,
para. 27) that the State party take immediate steps to improve the situation of older
persons in nursing homes, allocate the necessary resources to training nursing care
personnel and conduct more frequent and thorough inspections of nursing homes. The
Committee draws the attention of the State party to its general comment No. 6 (1995)
on the economic, social and cultural rights of older persons.
Document No. 310
CESCR, E/C.12/MEX/CO/5-6 (2018), Concluding
observations on the combined fifth and sixth periodic
reports of Mexico, paras 35–36
GE.18-06120 (E) 270418 300418
Committee on Economic, Social and Cultural Rights
Concluding observations on the combined fifth and sixth
periodic reports of Mexico*
1. The Committee considered the combined fifth and sixth periodic reports of Mexico
(E/C.12/MEX/5-6) at its 2nd and 3rd meetings (see E/C.12/2018/SR.2 and
E/C.12/2018/SR.3), held on 12 and 13 March 2018. At its 28th meeting, held on 29 March
2018, the Committee adopted the following concluding observations.
A. Introduction
2. The Committee welcomes the submission of the combined fifth and sixth periodic
reports of Mexico and the written replies to the list of issues (E/C.12/MEX/Q/5-6/Add.1),
which were supplemented by the delegation’s oral replies. The Committee appreciates the
frank and constructive dialogue held with the high-level delegation of the State party. The
Committee is also grateful to the State party for having forwarded the additional
information that was offered during the dialogue.
B. Positive aspects
3. The Committee welcomes the measures taken to promote the enjoyment of
economic, social and cultural rights, in particular the constitutional reform of 2011 whereby
the constitutional status of these rights was recognized. The Committee also welcomes the
implementation of the National Crusade against Hunger since 2013, the National
Development Plan 2013–2018 and the National Human Rights Programme 2014–2018.
4. The Committee welcomes the active participation of the National Human Rights
Commission and Mexican civil society organizations in the consideration of reports through
their submission of written and oral information to the Committee.
C. Principal subjects of concern and recommendations
The justiciability of economic, social and cultural rights
5. Although the Committee notes that the rights set out in the Covenant can be invoked
before the courts and applied in judicial decisions, it is concerned at the fact that, in practice,
victims of violations of economic, social and cultural rights have difficulty in accessing
effective judicial remedies, including the remedy of amparo. In addition, it is concerned at
the lack of effective enforcement of the judgments handed down in amparo proceedings in
which violations of economic, social and cultural rights have been found.
* Adopted by the Committee at its sixty-third session (12–29 March 2018).
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6 GE.18-06120
Informal economy
30. The Committee is concerned that approximately 57 per cent of workers are
employed in the informal economy and are thus not properly covered by labour laws or the
social protection system (arts. 6, 7 and 9).
31. The Committee recommends that the State party redouble its efforts to
progressively lower the number of workers in the informal sector of the economy, to
bring those workers into the formal sector and to ensure that they are covered by
labour laws and have access to social protection. In addition, it recommends that the
State party systematically include the informal sector of the economy in the activities
of the labour inspection and occupational health and safety services. The Committee
draws the State party’s attention to its general comments No. 18 (2005) on the right to
work, No. 19 (2009) on the right to social security and No. 23 (2016) on the right to
just and favourable conditions of work, as well as its statement of 2015 on “Social
protection floors: an essential element of the right to social security and of the
sustainable development goals” (E/C.12/2015/1).
Working conditions of agricultural and domestic workers
32. The Committee is concerned that, despite the efforts made, working conditions in
the agricultural and domestic sectors remain substandard and many workers in these sectors
continue to earn low wages, have little job security and be exposed to unsafe and unhealthy
working conditions and the risk of exploitation and abuse (art. 7).
33. The Committee recommends that the State party:
(a) Redouble its efforts to ensure that all agricultural and domestic workers
are provided in law and in practice with fair and satisfactory working conditions,
including pay that provides them with a decent standard of living for themselves and
their families;
(b) Ensure that the labour inspection mechanism has an appropriate
mandate and the necessary human, technical and financial resources to effectively
supervise employment conditions in all sectors, including domestic service, and that it
incorporates an appropriate mechanism for the effective enforcement of the measures
it takes and the sanctions it imposes;
(c) Establish effective complaint mechanisms for reporting abuse or
exploitation, taking into account the situation in which many domestic and
agricultural workers find themselves;
(d) Consider ratifying the ILO Domestic Workers Convention, 2011 (No.
189).
34. The Committee again draws the attention of the State party to its general
comment No. 23 (2016) on the right to just and favourable conditions of work.
Trade union rights
35. While the Committee takes note of the legislative and constitutional reforms relating
to employment that were adopted in February 2017 with a view to enhancing the protection
of trade union rights, it is concerned by reports of restrictions that, in practice, may affect
the exercise of these rights, such as the right to strike and collective bargaining. In addition,
it is concerned by allegations of the commission of acts of violence against trade union
leaders (art. 8).
36. The Committee recommends that the State party adopt effective measures to
eliminate, in practice, restrictions that hinder the effective exercise of trade union
rights by all workers, in accordance with article 8 of the Covenant and with the ILO
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87), and the ILO Right to Organise and Collective Bargaining Convention, 1949 (No.
98). In addition, it urges the State party to establish effective mechanisms for the
protection of union rights, including by carrying out effective investigations into all
E/C.12/MEX/CO/5-6
GE.18-06120 7
complaints brought to its attention and paying adequate compensation to the workers
concerned.
Social security
37. The Committee is concerned that the State party’s social protection system is
sectorally fragmented and closely linked to formal employment, which means that a
significant number of persons, such as informal workers, self-employed workers and
persons, especially women, who do unpaid domestic and care work, are not covered by the
social protection system (art. 9).
38. The Committee recommends that the State party continue making efforts to
develop a social security system that guarantees universal social protection coverage
and provides appropriate benefits for all persons, especially those belonging to the
most disadvantaged and marginalized groups, with a view to ensuring that they have a
decent standard of living. In addition, it urges the State party to strengthen its efforts
to develop a social protection floor that includes basic universal social guarantees. The
Committee draws the State party’s attention to its general comment No. 19 (2008) on
the right to social security and its statement of 2015 on “Social protection floors: an
essential element of the right to social security and of the sustainable development
goals”.
Violence against women
39. The Committee is concerned at the persistent violence against women that exists in
all spheres, including in the home. It is especially concerned at the large number of
femicides and high rates of impunity (arts. 3 and 10).
40. The Committee urges the State party to:
(a) Thoroughly investigate all cases of femicide and violence against women
and ensure that the perpetrators are prosecuted and duly punished;
(b) Strengthen existing mechanisms to prevent violence against women,
including through information campaigns to raise public awareness of the seriousness
and negative effects of such violence;
(c) Provide training to law enforcement officials and judges to educate them
about the seriousness and criminal nature of violence against women in all spheres,
including in the home;
(d) Step up its efforts to provide adequate protection to all women victims of
violence by ensuring that they have access to justice through effective remedies,
including means of obtaining reparation and compensation, and suitable access to
shelters where they can receive immediate physical protection, legal advice and
physical and mental health care.
Children and adolescents in situations of vulnerability
41. The Committee takes note with concern of the information it has received about the
vulnerable situation of many children and adolescents, particularly street children, in the
State party. It is also concerned that a significant number of children under the age of 14 are
engaged in child labour (art. 10).
42. The Committee recommends that the State party:
(a) Establish a comprehensive protection system for children and
adolescents who are in situations of particular vulnerability, especially street children,
with a view to ensuring their reintegration into society and ensuring that families
receive appropriate support to raise and educate their children;
(b) Intensify its efforts to prevent and combat the economic exploitation of
children by ensuring that legal provisions on child labour are vigorously enforced and
strengthening child labour inspection mechanisms;
Document No. 311
CESCR, E/C.12/ESP/CO/6 (2018), Concluding
observations on the sixth periodic report of Spain,
paras 28–29
GE.18-06514 (E) 310718 020818
Committee on Economic, Social and Cultural Rights
Concluding observations on the sixth periodic report of
Spain*
1. The Committee considered the sixth periodic report of Spain (E/C.12/ESP/6) at its
16th and 17th meetings (see E/C.12/2018/SR.16 and 17), held on 21 and 22 March 2018,
and adopted the present concluding observations at its 28th meeting, held on 29 March
2018.
A. Introduction
2. The Committee welcomes the submission of the sixth periodic report of Spain
through the simplified reporting procedure in response to the list of issues prior to reporting
prepared under that procedure (E/C.12/ESP/Q/6). The Committee thanks the State party for
having accepted the simplified reporting procedure, as this procedure helps to improve
cooperation and better focus the dialogue between the State party and the Committee. It
furthermore expresses its appreciation for the open and constructive dialogue held with the
multisectoral delegation of the State party and thanks the delegation for its oral replies and
for the supplementary information provided during the dialogue.
B. Positive aspects
3. The Committee acknowledges the profound impact that the international financial
crisis has had on the economy and on the effective enjoyment of economic, social and
cultural rights in the State party. In this context, the Committee welcomes the fact that the
economic recession has been overcome and that the State party has adopted measures and
policies that demonstrate its commitment to economic, social and cultural rights, including
the ratification of the Optional Protocol to the Convention on the Rights of the Child on a
communications procedure and the adoption of the National Plan of Action for Social
Inclusion 2013–2016, the National Strategy for the Social Inclusion of the Gitano
Population 2012–2020, the Comprehensive National Strategy for Homeless Persons 2015–
2020 and the National Plan of Action on Business and Human Rights.
4. The Committee welcomes the active role played by Spanish civil society
organizations in the process relating to the consideration of the State party’s sixth periodic
report.
* Adopted by the Committee at is sixty-third session (12–19 March 2018).
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(c) Strengthen the labour inspection system so that all regions of the State
party have the material and human resources required to monitor working conditions
effectively.
27. The Committee refers the State party to its general comment No. 23 (2016) on
the right to just and favourable conditions of work.
Trade union rights
28. The Committee is concerned that the changes made during the 2012 labour reform
could negatively influence enjoyment of the right to bargain collectively. It is also
concerned by information it has received about the over-zealous application of article 315
(3) of the Criminal Code, which has resulted in the criminal prosecution of workers who
have participated in strikes (art. 8).
29. The Committee recommends that the State party ensure the effectiveness of
collective bargaining and of the right to union representation, both in law and in
practice, in conformity with article 8 of the Covenant and with the provisions of the
International Labour Organization (ILO) Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87) and Right to Organise and Collective
Bargaining Convention, 1949 (No. 98). It also urges the State party to consider the
further revision or derogation of article 315 (3) of the Criminal Code in order to
prevent the criminal prosecution of workers who have participated in strikes.
Social security
30. The Committee is concerned at the persistent deficit shown by the pension system,
at the low percentage of persons eligible for non-contributory benefits and at the fact that
the level of both contributory and non-contributory benefits is insufficient to ensure that all
pensioners and their dependants are guaranteed an adequate standard of living (art. 9).
31. Based on its previous recommendation (E/C.12/ESP/CO/5, para. 20), the
Committee calls on the State party to:
(a) Take the necessary measures, with the participation of all social
stakeholders, in particular the trade unions, to eliminate the deficit shown by the
pension system, in order to ensure the system’s sustainability;
(b) Step up its efforts to ensure that everyone is covered by the social
security system, including the most disadvantaged or marginalized persons and
groups;
(c) Re-establish the correlation between social security benefits and the cost
of living so as to guarantee beneficiaries and their families an adequate standard of
living. To that end, the State party is encouraged to establish an effective and
transparent indexation system.
32. The Committee draws the attention of the State party to its general comment
No. 19 (2008) on the right to social security.
Poverty
33. The Committee notes with concern that, for a country with the State party’s level of
development, the percentage of the population at risk of poverty and social exclusion is
high, particularly among certain groups, such as young people, women, the least educated
and migrants. The Committee is also concerned that this percentage is higher in certain
autonomous communities and that children are most at risk of falling into poverty (art. 11).
34. The Committee recommends that the State party accelerate the preparation
and adoption of the National Strategy to Prevent and Combat Poverty and Social
Exclusion 2018–2020, ensuring that it focuses on the individuals and groups most
affected, such as children, and is implemented in accordance with a human rightsbased
approach. It also recommends that the State party allocate sufficient resources
to its implementation, taking into account the disparities between the autonomous
communities. The Committee draws the attention of the State party to its 2001
Document No. 312
CESCR, E/C.12/EST/CO/3 (2019), Concluding
observations on the third periodic report of Estonia,
paras 26–27
GE.19-05020(E)
Committee on Economic, Social and Cultural Rights
Concluding observations on the third periodic report of
Estonia*
1. The Committee considered the third periodic report of Estonia (E/C.12/EST/3) at its
4th and 5th meetings (see E/C.12/2019/SR.4 and 5) held on 19 and 20 February 2019, and
adopted the present concluding observations at its 30th meeting, held on 8 March 2019.
A. Introduction
2. The Committee welcomes the submission of the third periodic report by the State
party as well as the supplementary information provided in the replies to the list of issues
(E/C.12/EST/Q/3/Add.1). The Committee appreciates the constructive dialogue held with
the State party’s interministerial delegation.
B. Positive aspects
3. The Committee welcomes the legislative, institutional and policy measures taken by
the State party to enhance the level of protection of economic, social and cultural rights in
the State party, as referred to in the present concluding observations. It notes, in particular,
the significant increase in the minimum wage during the reporting period and the adoption
of the Welfare Development Plan for 2016–2023.
C. Principal subjects of concern and recommendations
Applicability of the Covenant
4. The Committee notes that some Covenant rights are protected in the Constitution,
and that article 123 of the Constitution establishes the primacy of international treaties over
domestic law. However, the Committee is concerned at the lack of information on judicial
remedies and of examples of cases where Covenant rights are protected by domestic courts.
5. The Committee recommends that the State party:
(a) Incorporate all the rights enshrined in the Covenant in the domestic
legal order;
(b) Strengthen judicial remedies for the protection of Covenant rights in its
domestic legal order;
(c) Enhance training for judges and lawyers on the Covenant;
* Adopted by the Committee at its sixty-fifth session (18 February–8 March 2019).
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(b) Prevent and mitigate the risk of occupational accidents and diseases;
(c) Strengthen the capacity of the Labour Inspectorate to monitor working
conditions, including by increasing its financial and human resources;
(d) Establish an occupational health safety insurance scheme.
Trade union rights
26. Despite the explanation given by the delegation, the Committee remains concerned
that article 59 of the Civil Service Act does not allow civil servants to exercise their right to
strike or to take part in other collective pressure actions that interfere with the performance
of functions of the recruiting authority or of other authorities, as set out in the Act (art. 8).
27. The Committee recommends that the State party review the Civil Service Act
with a view to allowing civil servants who do not provide essential services to exercise
their right to strike in accordance with article 8 of the Covenant and with the
International Labour Organization Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87).
Old age pension
28. The Committee is concerned that the level of the State pension insurance (pillar I of
the old age pension scheme), which is below the at-risk-of-poverty line, is not sufficient to
ensure beneficiaries an adequate standard of living. It is also concerned that this has
contributed to the high relative poverty rate (47.5 per cent) for persons over 65 years of age.
It is further concerned that the mandatory funded pension scheme (pillar II) does not cover
the self-employed and that its coverage among those born between 1942 and 1982 is only
62 per cent (art. 9).
29. The Committee recommends that the State party ensure that the level of State
pension insurance benefits is sufficient to provide beneficiaries, particularly those who
are living alone, with an adequate standard of living and to reduce the prevalence of
pensioners at risk of poverty. It also recommends that the State party extend the
coverage of the mandatory funded pension scheme to the self-employed and reopen
the opportunity for those who were born between 1942 and 1982 to enrol in the
pension scheme. In this context, the Committee draws the attention of the State party
to its general comment No. 19 (2008) on the right to social security.
Unemployment benefits
30. The Committee reiterates its concern that the unemployment insurance benefit is not
paid in cases where the employment contract has been terminated due to professional fault.
The Committee is also concerned at the low coverage of the unemployment insurance
benefit and the unemployment allowance schemes, and the insufficient level of these
benefits to ensure an adequate standard of living to the beneficiaries (art. 9).
31. The Committee reiterates its previous recommendation that the State party
rescind the condition imposed on the payment of unemployment benefits, as regards
the reason for the termination of the employment contract. It also recommends that
the State party ensure that unemployment benefits cover all workers, including the
self-employed and workers in the informal economy, and that the level of those
benefits is sufficient to provide the beneficiaries with an adequate standard of living.
Minimum age of marriage
32. While noting that the number of child marriages is minimal, the Committee remains
concerned that, according to the Family Law, children aged 15 years and older can, in
exceptional cases, be allowed to marry by the courts.
33. The Committee recommends that the State party revise its legislation in order
to make it clear that the minimum age for marriage is 18 years for both girls and boys
and that it take all measures to eliminate child marriage.
Document No. 313
CESCR, E/C.12/UZB/CO/3 (2022), Concluding
observations on the third periodic report of Uzbekistan,
paras 36–37
GE.22-04767(E)
Committee on Economic, Social and Cultural Rights
Concluding observations on the third periodic report of
Uzbekistan**
1. The Committee considered the third periodic report of Uzbekistan1 at its 13th, 15th
and 17th meetings,2 held on 22, 23 and 24 February 2022, and adopted the present concluding
observations at its 30th meeting, held on 4 March 2022.
A. Introduction
2. The Committee welcomes the submission by the State party of the third periodic
report and the supplementary information provided in the replies to the list of issues.3 The
Committee appreciates the constructive dialogue with the State party’s high-level
interministerial delegation.
B. Positive aspects
3. The Committee welcomes the legislative, institutional and policy measures taken by
the State party to enhance the realization of economic, social and cultural rights, as referred
to in the present concluding observations. In particular, the Committee welcomes the
adoption of the Act on Combating Corruption (No. LRU-419 of 3 January 2017) and the
establishment of the Anti-Corruption Agency.
C. Principal subjects of concern and recommendations
Domestic application of the Covenant
4. While noting that the Covenant forms an integral part of the national legal framework
according to the Constitution and that courts are competent to refer to the Covenant, the
Committee remains concerned that provisions of the Covenant are rarely invoked in courts
(art. 2 (1)).
5. The Committee recommends the State party to raise public awareness about the
Covenant and provide capacity-building programmes for judges, prosecutors and
lawyers, to allow them to invoke and apply economic, social and cultural rights in
domestic courts. The Committee draws the attention of the State party to its general
comment No. 9 (1998) on the domestic application of the Covenant.
* Reissued for technical reasons on 21 April 2022.
** Adopted by the Committee at its seventy-first session (14 February–4 March 2022).
1 E/C.12/UZB/3.
2 See E/C.12/2022/SR.13, E/C.12/2022/SR.15 and E/C.12/2022/SR.17.
3 E/C.12/UZB/RQ/3.
United Nations E/C.12/UZB/CO/3*
Economic and Social Council Distr.: General
31 March 2022
Original: English
E/C.12/UZB/CO/3
6
Right to just and favourable conditions of work
30. The Committee notes the information on the annual review of the minimum wage and
its increase in the last five years, following the legislative reform. However, the Committee
is concerned that the minimum wage remains insufficient to ensure a decent living for
workers and their families. The Committee regrets the lack of information on the criteria of
the review process to determine the level of the minimum wage. It is also concerned about
the lack of information on the mandate of the State Labour Inspectorate to enforce the
minimum wage and carry out inspections in the informal economy (art. 7).
31. The Committee recommends that the State party ensure the participation of
social partners in the annual periodic review of the minimum wage, and index it to the
cost of living, thereby ensuring that it enables workers and their families to enjoy a
decent living. It also recommends setting up enforcement mechanisms for the payment
of the minimum wage, especially for the informal sector, and ensuring safe and
accessible channels of complaint. It recommends strengthening the State Labour
Inspectorate to enforce the minimum wage and carry out inspections in the informal
economy. The Committee draws the attention of the State party to its general comment
No. 23 (2016) on the right to just and favourable conditions of work.
Youth unemployment
32. The Committee is concerned about the high rate of young people, particularly young
women, who are not in employment, education or training after secondary education (arts. 3
and 6).
33. The Committee recommends that the State party strengthen its efforts to reduce
the number of young people who are not in employment, education or training, also by
increasing technical and vocational training opportunities tailored to the labour market,
with a special focus on women.
Trade union rights
34. The Committee notes the information on the adoption of the Act on Trade Unions (No.
ZRU-588 of 6 December 2019). However, the Committee is concerned that trade unions are
required to obtain approval from the Ministry of Justice for registration. It is also concerned
that there has been no increase in the number of registered trade unions since 2016, and about
the low participation level among employees from the public and private sectors in trade
unions (art. 8).
35. The Committee recommends that the State party strengthen its measures to
ensure the right of employees to establish trade unions of their own choosing, by
eliminating the requirement of prior authorization by the Ministry of the Justice and
removing the administrative obstacles to the formation of trade unions. It also
recommends expediting the adoption of the Bill on Rallies, Meetings and
Demonstrations, with the effective and meaningful participation of trade unions and
relevant stakeholders, while guaranteeing that trade unions can exercise their rights
and activities freely and without undue restrictions and intimidation. The Committee
draws the State party’s attention to its general comment No. 18 (2005) on the right to
work, and refers the State party to its joint statement with the Human Rights
Committee on freedom of association, including the right to form and join trade unions,7
adopted in 2019.
Right to strike
36. The Committee is concerned about the lack of regulatory framework on the right to
strike in the State party (art. 8).
7 E/C.12/66/5-CCPR/C/127/4.
E/C.12/UZB/CO/3
7
37. The Committee recommends the State party to accelerate the adoption of the
amendments to the Labour Act and to ensure the introduction of the right to strike in
accordance with international standards.
Right to social security
38. The Committee notes the information from the State party on the adoption of the
National Strategy for Social Protection (2021–2030) and the implementation of the first stage
of the compulsory health insurance system. The Committee is concerned, however, about the
lack of coordination among governmental entities regarding different social protection
measures and the inadequate level of social benefits and their unavailability to all relevant
population groups (arts. 9 and 12).
39. The Committee recommends that the State party effectively implement its
National Strategy for Social Protection, including by establishing a clear coordination
and administrative mechanism, with a view to covering all segments of the population,
particularly those in the informal sector, and that it accelerate the roll-out of the
compulsory health insurance. It also recommends ensuring an appropriate level of
social protection benefits for persons with disabilities, older persons, Roma/Lyuli,
refugees and asylum seekers, and conducting periodic recalculations of social
allowances. The Committee refers the State party to its general comment No. 19 (2007)
on the right to social security, and to its statement, adopted in 2015, entitled “Social
protection floors: an essential element of the right to social security and of the
Sustainable Development Goals”.8
Protection of the family and children
40. The Committee notes the information from the State party on the preparation of the
Bill on Domestic Violence and the Bill on Social Protection of Orphans and Children
Deprived of Parental Care, as well as on the implementation of the deinstitutionalization
policy for children. However, the Committee is concerned about the inadequate level of
family-based and alternative care support for children, particularly for children belonging to
disadvantaged and marginalized groups. The Committee is also concerned about the lack of
systematic data collection on the situation of children belonging to disadvantaged and
marginalized groups (arts. 9 and 10).
41. The Committee recommends that the State party:
(a) Accelerate the adoption of the Bill on Domestic Violence to criminalize all
forms of domestic violence, including marital rape, and ensure its effective
implementation, with a view to protecting all victims, bringing perpetrators to justice
and preventing impunity;
(b) Accelerate the adoption of the Bill on Social Protection of Orphans and
Children Deprived of Parental Care and intensify its efforts to strengthen family-based
and alternative care support for children, particularly children with disabilities, while
ensuring the effective implementation of its deinstitutionalization policy;
(c) Ensure the systematic collection of statistics on children belonging to
disadvantaged and marginalized groups.
Forced evictions
42. The Committee notes the information provided by the State party on measures adopted
relating to property and land deprivation. However, the Committee regrets the reports about
the expropriation of property, the demolition of houses and forced eviction in the light of
urban development projects. It is also concerned about reports of non-compliance with the
national legal framework on property deprivation, especially about the absence of prior
consultation with the residents affected and the lack or inadequacy of compensation and
alternative housing (art. 11).
8 E/C.12/2015/1.
Document No. 314
Joint statement by the Committee on Economic, Social,
and Cultural Rights and the Human Rights Committee,
E/C.12/66/5-CCPR/C/127/4 (2019)
GE.19-21026(E)
Committee on Economic, Social and Cultural Rights Human Rights Committee
Statement on freedom of association, including the right to
form and join trade unions
Joint statement by the Committee on Economic, Social and Cultural
Rights and the Human Rights Committee*
1. On the occasion of the 100th anniversary of the International Labour Organization
(ILO), the Committee on Economic, Social and Cultural Rights and the Human Rights
Committee decided to issue the present joint statement on the basic principles of freedom of
association common to both Covenants, in particular in relation to trade union rights, as
also protected under the Universal Declaration of Human Rights and the ILO Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87). The
Committee on Economic, Social and Cultural Rights and the Human Rights Committee
welcome the progress made by States to guarantee freedom of association in labour
relations. At the same time, the two Committees note the challenges faced in the effective
protection of this fundamental freedom, including undue restrictions on the right of
individuals to form and join trade unions, the right of unions to function freely, and the
right to strike.
2. Under article 8 of the International Covenant on Economic, Social and Cultural
Rights, States parties undertake to ensure the right of everyone to form trade unions and
join the trade union of their choice for the promotion and protection of their economic and
social interests. Article 22 of the International Covenant on Civil and Political Rights
guarantees the right of everyone to freedom of association with others, including the right
to form and join trade unions for the protection of their interests. While the respective
provisions are not identical, there is an important commonality between them, reflecting the
fact that the right of each individual to freely associate with others, including the right to
form and join trade unions, is at the intersection between civil and political rights and
economic, social and cultural rights. The exercise of this right, moreover, may be seen both
as closely linked to the freedoms of opinion and expression and the right of peaceful
assembly, protected under articles 19 and 21 of the International Covenant on Civil and
Political Rights, and as instrumental for the protection of workers’ rights, including their
rights to work and to just and favourable conditions of work, protected under articles 6 and
7 of the International Covenant on Economic, Social and Cultural Rights.
3. Freedom of association includes the right of individuals, without distinction, to form
and join trade unions for the protection of their interests. The right to form and join trade
unions requires that trade unionists be protected from any discrimination, harassment,
intimidation or reprisals. The right to form and join trade unions also implies that trade
* Adopted by the Committee on Economic, Social and Cultural Rights at its sixty-sixth session (30
September–18 October 2019) and by the Human Rights Committee at its 127th session (14 October–8
November 2019).
United Nations E/C.12/66/5-CCPR/C/127/4
Economic and Social Council
International Covenant on
Civil and Political Rights
Distr.: General
6 December 2019
Original: English
E/C.12/66/5-CCPR/C/127/4
2
unions should be allowed to operate freely, without excessive restrictions on their
functioning.
4. Freedom of association, along with the right of peaceful assembly, also informs the
right of individuals to participate in decision-making within their workplaces and
communities in order to achieve the protection of their interests. The Committees recall that
the right to strike is the corollary to the effective exercise of the freedom to form and join
trade unions. Both Committees have sought to protect the right to strike in their review of
the implementation by States parties of the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and Political Rights.
Document No. 315
Report on Rights to freedom of peaceful assembly and of
association, A/71/385 (2016), paras 54, 56 and 99(i)
United Nations A/71/385
General Assembly
Distr.: General
14 September 2016
Original: English
16-15867 (E) 260916
*1615867*
Seventy-first session
Item 69 (b) of the provisional agenda*
Promotion and protection of human rights: human rights
questions, including alternative approaches for improving the
effective enjoyment of human rights and fundamental freedoms
Rights to freedom of peaceful assembly and of association**
Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the
General Assembly the report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, submitted in accordance with
Human Rights Council resolution 24/5.
* A/71/150.
** The present report was submitted after the deadline in order to reflect the most recent
developments.
A/71/385
16-15867 15/29
violating rights recognized by the Covenant, and are accountable for violations of
those rights when the infringement occurs as a result of its failure to secure the right
in domestic law and practice. The desire to maximize economic profit or create
attractive investment climates does not lower the obligations and responsibilities of
the State. The Covenant also obliges States to combat discrimination by private
actors,68 including in employment.69
52. The principle of non-discrimination applies to all rights, and States are obliged
to ensure that traditionally disenfranchised groups are able to enjoy their rights to
freedom of peaceful assembly and of association. Article 4 of the Convention on the
Elimination of All Forms of Discrimination against Women requires States to t ake
positive measures to secure equal enjoyment of rights for women, including
assembly and association rights. The Committee on Migrant Workers70 requires
States to encourage self-organization among migrant workers irrespective of their
migration status, and to inform them about associations that can provide assistance.
53. The International Covenant on Economic, Social and Cultural Rights requires
that States ensure that people can organize and join workers’ associations that
address their concerns, and that particular attention be given to domestic workers,
rural women workers, women working in female-dominated industries and women
working at home, who are often deprived of that right.71
54. Both trade unions and the right to strike are fundamental tools to achieving
workers’ rights, as they provide mechanisms through which workers can stand up
for their interests collectively, and engage with big business and government on a
more equal footing. The State is obligated to protect these rights for all workers .
55. The International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights both explicitly protect the right
to form and join trade unions. International human rights law also imposes upon
States a duty to actively promote, encourage and facilitate the enjoyment of
fundamental rights, including labour rights (A/70/266, para. 4). Further, the notion
that States should promote trade unionism among workers is implicit in the
International Covenant on Economic, Social and Cultural Rights. States must take
measures to ensure that third parties do not interfere with union rights.
__________________
68 Ibid., arts. 2 and 26.
69 Human Rights Committee, Franz Nahlik v. Austria, decision on communication No. 608/1995,
22 July 1996 (CCPR/C/57/D/608/1995).
70 Committee on the Protection of the Rights of All Migrant Workers and Members of Their
Families, general comment No. 2, 28 August 2013 (CMW/C/GC/2).
71 See Committee on Economic, Social and Cultural Rights, general comment No. 23 (2016) on the
right to just and favourable conditions of work (E/C.12/GC/23).
A/71/385
16/29 16-15867
56. The right to strike has been established in international law for decades, in
global and regional instruments, and is also enshrined in the constitutions of at least
90 countries.72 The right to strike has, in fact, become customary international law. 73
1. Instruments of the International Labour Organization
57. ILO, as the only global tripartite institution, plays a unique role in setting
standards on fundamental principles and rights at work. Core ILO labour
conventions include the Freedom of Association and Protection of the Right to
Organize, 1948 (No. 87), which calls on States to prevent discrimination against
trade unions, protect employers’ and workers’ organizations against mutual
interference and promote collective bargaining; and the Right to Organize and
Collective Bargaining Convention, 1949 (No. 98), which protects workers who are
exercising their right to organize, upholds the principle of non-interference between
workers’ and employers’ organizations and promotes voluntary collective
bargaining. These foundational rights are essential to the protection of other core
labour rights. ILO signatory States are obliged to respect principles of freedom of
association whether or not they have ratified the appropriate conventions. 74 The ILO
Decent Work Agenda calls on countries to respect core conventions, provide for
social protection, create decent jobs and engage in genuine social (tripartite)
dialogue. Also of relevance, the ILO Domestic Workers Convention, 2011 (No. 189)
sets standards for the effective promotion and protection of domestic workers’
human rights.
2. States’ obligations to respect, protect and fulfil the rights to freedom of peaceful
assembly and association
Respect
58. States have the primary role in preventing or halting violations of workers’
rights to freedom of peaceful assembly and of association, with clear obligations to
protect, promote, facilitate and fulfil those rights, even in the global economy. Yet
workers’ ability to exercise their rights is in precipitous decline. Many States place
obstacles, both in law and practice, that restrict workers’ rights or fail to enforce
__________________
72 See, for example, Clarence Wilfred Jenks, The International Protection of Trade Union Freedom,
The Library of World Affairs, No. 35 (New York, Frederick A. Praeger, 1957), pp. 561-562; Paul
O’Higgins, “International standards and British labour law”, in Roy Lewis, Labour Law in
Britain (Oxford, United Kingdom, Oxfordshire, 1986), p. 577; Breen Creighton, “The ILO and
protection of freedom of association in the United Kingdom”, in Keith D. Ewing, Conor A.
Gearty and Bob A. Hepple, eds., Human Rights and Labour Law: Essays for Paul O’Higgins
(New York, Mansell,1994), p. 2; ILO, International Labour Standards: A Workers’ Education
Manual, 3rd rev. ed. (Geneva, 1990), p. 106.
73 See, for example, ILO Convention No. 87 of 1948, arts. 3, 8 and 10; International Covenant on
Economic, Social and Cultural Rights of 1966, art. 8; International Covenant on Civil and
Political Rights of 1966, art. 22, European Convention on Human Rights of 1950, art. 11;
American Convention on Human Rights of 1969, art. 16.
74 International Labour Organization, ILO Declaration on Fundamental Principles and Rights at
Work (Geneva, 1998). Available from www.ilo.org/declaration/thedeclaration/textdeclaration/
lang--en/index.htm.
A/71/385
16-15867 27/29
or sector, immigration status or other limitations contrary to international law
and standards;
(iv) Ensure policy coherence through a review and revision of national
laws and policies that may adversely impact the full exercise of the rights to
freedom of assembly and association;
(v) Take appropriate measures, including affirmative measures, to
ensure that workers in vulnerable situations have the ability to exercise
effectively their assembly and association rights. Such measures should include:
(a) Improving guest worker programmes to, among other things,
eliminate structural barriers, such as coercive conditions of work visas
that provide the employer inordinate control over the lives of workers;
(b) Removing impediments to freedom of movement and access to justice
(for example, provide temporary immigration status while rights
violations are being investigated);
(c) Regulation of financial requirements that create debt and conditions
for exploitation by third parties;
(d) Actively creating an enabling environment for workers to establish
independent, voluntary associations, including trade unions;
(vi) Establish and adequately resource independent mechanisms to
monitor the effective protection of assembly and association rights;
(vii) Prohibiting companies that fail to respect assembly and association
rights from bidding on public contracts;
(viii) Ensuring the availability of effective judicial or other appropriate
remedies for the violation of peaceful assembly and association rights that are
available to all and are not subject to migration status;
(ix) Devoting particular attention to protecting and promoting the
assembly and association rights of migrant workers, who by virtue of their
immigration status may lack other mechanisms with which to advance their
political, social and economic interests;
(x) Upholding the protection of workers’ assembly and association rights
in bilateral and multilateral trade and investment agreements, and consulting
with civil society organizations, including trade unions, to the same extent as
business entities in their engagement on such agreements;
(xi) Ensuring that non-State actors, particularly businesses, comply with
international human rights norms and standards, and in particular the rights
to freedom of peaceful assembly and of association. Regulation mechanisms
should include due diligence processes, human rights impact assessments and
mandatory disclosure regimes in respect of global supply chains.
99. The Special Rapporteur recommends that businesses (including
employers, lead firms, subsidiaries, suppliers, franchisees or investors in supply
chains):
A/71/385
28/29 16-15867
(i) Meet their obligations to respect the rights to freedom of peaceful
assembly and of association. That includes respecting the rights of all workers
to form and join trade unions and labour associations and to engage in
collective bargaining and other collective action, including the right to strike;
(ii) Refrain from anti-union policies and practices, and reprisals against
workers who exercise their peaceful assembly and association rights;
(iii) Implement the Guiding Principles on Business and Human Rights
by, among other things, making policy commitments to respect peaceful
assembly and association rights and conducting due diligence in relation to
human rights in respect of global supply chains.
100. The Special Rapporteur recommends that civil society, including trade
unions:
(i) Create alliances across civil society to monitor the effective
implementation of these recommendations;
(ii) Commit to the principle that labour rights are human rights, and
recognize the urgent need for general human rights organizations to work on
labour rights as a part of their core mandates, particularly in this era of
weakening of workers’ rights;
(iii) Trade unions specifically target outreach and advocacy at
historically disenfranchised worker populations, including the full
incorporation of domestic, migrant and informal workers into trade unions and
bargain collective agreements;
(iv) Continue to advocate for equal opportunity to present their views in
consultations with Governments and businesses on matters that affect workers’
rights.
101. The Special Rapporteur recommends that the International Labour
Organization:
(i) Pursue standard setting to ensure that workers in informal
employment can enjoy the right to freedom of association and to bargain
collectively;
(ii) Enhance policies and programmes to ensure that workers in
vulnerable situations, including migrant workers, domestic workers, workers
from minority groups and workers in the informal economy, can exercise their
rights to freedom of peaceful assembly and of association;
(iii) Pursue standard setting to address governance gaps with regard to
the protection of workers’ assembly and association rights in global supply
chains.
102. The Special Rapporteur recommends that the United Nations and
multilateral financial institutions:
(i) In consultation with trade unions and worker organizations, ensure
the promotion and protection of assembly and association rights in their
policies and programmes, particularly with regard to policies related to
Document No. 316
European Committee of Social Rights, Swedish Trade
Union Confederation (LO) and Swedish Confederation of
Professional Employees (TCO) v. Sweden, Complaint
No. 85/2012, Decision on admissibility and the
merits (2012), para. 110
EUROPEAN COMMITTEE OF SOCIAL RIGHTS
COMITÉ EUROPÉEN DES DROITS SOCIAUX
DECISION ON ADMISSIBILITY
AND THE MERITS
Adoption: 3 July 2013
Notification: 19 July 2013
Publicity: 5 February 2014
Swedish Trade Union Confederation (LO) and Swedish Confederation of
Professional Employees (TCO)
v. Sweden
Complaint No. 85/2012
The European Committee of Social Rights, committee of independent experts
established under Article 25 of the European Social Charter ("the Committee”),
during its 265th Session attended by:
Luis JIMENA QUESADA, President
Monika SCHLACHTER, Vice-President
Petros STANGOS, Vice-President
Lauri LEPPIK
Birgitta NYSTRÖM
Rüçhan IŞIK
Jarna PETMAN
Alexandru ATHANASIU
Elena MACHULSKAYA
Giuseppe PALMISANO
Karin LUKAS
Eliane CHEMLA
Jozsef HAJDU
Marcin WUJCZYK
Assisted by Régis BRILLAT, Executive Secretary
- 45 -
As to the improvement of the application of the EU Posting of Workers Directive
106. LO and TCO consider that the ongoing discussions within the EU regarding
the above-mentioned improvement is, in the present context, “irrelevant” and that
“a proposal being discussed within the EU does not address the issue of the right
to take collective action [in Sweden]”.
B - Assessment of the Committee
107. Having regard to the preliminary observations on the merits of the
complaint (paragraphs 72 to 74 above), the Committee considers that its task is
not to judge the conformity to the Charter of the CJEU’s preliminary ruling in the
Laval case, but rather to assess whether the legislative amendments adopted by
the Swedish Parliament, in April 2010 (in the aftermath and as a consequence of
the above-mentioned ruling) and in December 2009 (in order to implement the
provisions of Directive 2006/123/EC) constitute a violation of the Charter.
108. In its assessment regarding the alleged violation of Article 6§§2 and 4, the
Committee will refer in particular to: a) Sections 5a - 5b (SFS: 2012:857) and
Sections 10 - 11 (SFS 2013:351) of the Foreign Posting of Employees
Act (1999:678), Section 41c of the Co-determination Act (1976:580) and the
Temporary Agency Work Act (2012:854); b) the changes made in Section 2 of the
Foreign Branch Offices Act (2009:1083), Section 3 of the Foreign Branch Offices
Ordinance (1992:308).
109. From a general point of view, the Committee considers that the exercise of
the right to bargain collectively and the right to collective action, guaranteed by
Article 6§§2 and 4 of the Charter, represents an essential basis for the fulfilment of
other fundamental rights guaranteed by the Charter, including for example those
relating to just conditions of work (Article 2), safe and healthy working conditions
(Article 3), fair remuneration (Article 4), information and consultation (Article 21),
participation in the determination and improvement of the working conditions and
working environment (Article 22), protection in cases of termination of employment
(Article 24), protection of the workers’ claims in the event of the insolvency of their
employer (Article 25), dignity at work (Article 26) workers’ representatives
protection in the undertaking and facilities to be accorded to them (Article 28),
information and consultation in collective redundancy procedures (Article 29).
110. In addition, the Committee notes that the right to collective bargaining and
action receives constitutional recognition at national level in the vast majority of
the Council of Europe’s member States, as well as in a significant number of
binding legal instruments at the United Nations and EU level. In this respect,
reference is made inter alia to Article 8 of the International Covenant on Economic,
Social and Cultural Rights (see paragraph 37 above), the relevant provisions of
the ILO conventions Nos. 87, 98 and 154 (see paragraph 38 above) as well as the
EU Charter of Fundamental Rights, Directive 2006/123/EC on services in the
internal market (cf. Article 1§7) and the Directive 2008/104/EC on temporary
agency work - recital 19 (see paragraphs 36 above).
Document No. 317
ECtHR, Demir and Baykara v. Turkey (2008), paras 140–
170
CONSEIL
DE L’EUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE L’HOMME
EUROPEAN COURT OF HUMAN RIGHTS
GRAND CHAMBER
CASE OF DEMİR AND BAYKARA v. TURKEY
(Application no. 34503/97)
JUDGMENT
STRASBOURG
12 November 2008
DEMİR AND BAYKARA v. TURKEY JUDGMENT 35
3. Whether there was interference
(a) General principles concerning the substance of the right of association
(i) Evolution of case-law
140. The development of the Court’s case-law concerning the
constituent elements of the right of association can be summarised as
follows: the Court has always considered that Article 11 of the Convention
safeguards freedom to protect the occupational interests of trade-union
members by the union’s collective action, the conduct and development of
which the Contracting States must both permit and make possible (see
National Union of Belgian Police, cited above, § 39; Swedish Engine
Drivers’ Union, cited above, § 40; and Schmidt and Dahlström v. Sweden,
6 February 1976, § 36, Series A no. 21).
141. As to the substance of the right of association enshrined in
Article 11 of the Convention, the Court has taken the view that § 1 of that
Article affords members of a trade union a right, in order to protect their
interests, that the trade union should be heard, but has left each State a free
choice of the means to be used towards this end. What the Convention
requires, in the Court’s view, is that under national law trade unions should
be enabled, in conditions not at variance with Article 11, to strive for the
protection of their members’ interests (see National Union of Belgian
Police, cited above, § 39; Swedish Engine Drivers’ Union, cited above,
§ 40; and Schmidt and Dahlström, cited above, § 36).
142. As regards the right to enter into collective agreements, the Court
initially considered that Article 11 did not secure any particular treatment of
trade unions, such as a right for them to enter into collective agreements
(see Swedish Engine Drivers’ Union, cited above, § 39). It further stated
that this right in no way constituted an element necessarily inherent in a
right guaranteed by the Convention (see Schmidt and Dahlström, cited
above, § 34).
143. Subsequently, in the case of Wilson, National Union of Journalists
and Others, the Court considered that even if collective bargaining was not
indispensable for the effective enjoyment of trade-union freedom, it might
be one of the ways by which trade unions could be enabled to protect their
members’ interests. The union had to be free, in one way or another, to seek
to persuade the employer to listen to what it had to say on behalf of its
members (ibid., § 44).
144. As a result of the foregoing, the evolution of case-law as to the
substance of the right of association enshrined in Article 11 is marked by
two guiding principles: firstly, the Court takes into consideration the totality
of the measures taken by the State concerned in order to secure trade-union
freedom, subject to its margin of appreciation; secondly, the Court does not
36 DEMİR AND BAYKARA v. TURKEY JUDGMENT
accept restrictions that affect the essential elements of trade-union freedom,
without which that freedom would become devoid of substance. These two
principles are not contradictory but are correlated. This correlation implies
that the Contracting State in question, while in principle being free to decide
what measures it wishes to take in order to ensure compliance with
Article 11, is under an obligation to take account of the elements regarded
as essential by the Court’s case-law.
145. From the Court’s case-law as it stands, the following essential
elements of the right of association can be established: the right to form and
join a trade union (see, as a recent authority, Tüm Haber Sen and Çınar,
cited above), the prohibition of closed-shop agreements (see, for example,
Sørensen and Rasmussen, cited above) and the right for a trade union to
seek to persuade the employer to hear what it has to say on behalf of its
members (see Wilson, National Union of Journalists and Others, cited
above, § 44).
146. This list is not finite. On the contrary, it is subject to evolution
depending on particular developments in labour relations. In this
connection, it is appropriate to remember that the Convention is a living
instrument which must be interpreted in the light of present-day conditions,
and in accordance with developments in international law, so as to reflect
the increasingly high standard being required in the area of the protection of
human rights, thus necessitating greater firmness in assessing breaches of
the fundamental values of democratic societies. In other words, limitations
to rights must be construed restrictively, in a manner which gives practical
and effective protection to human rights (see, mutatis mutandis, Refah
Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98,
41342/98, 41343/98 and 41344/98, § 100, ECHR 2003-II, and Selmouni v.
France [GC], no. 25803/94, § 101, ECHR 1999-V).
(ii) The right to bargain collectively
147. The Court observes that in international law, the right to bargain
collectively is protected by ILO Convention No. 98 concerning the Right to
Organise and to Bargain Collectively. Adopted in 1949, this text, which is
one of the fundamental instruments concerning international labour
standards, was ratified by Turkey in 1952. It states in Article 6 that it does
not deal with the position of “public servants engaged in the administration
of the State”. However, the ILO Committee of Experts interpreted this
provision as excluding only those officials whose activities were specific to
the administration of the State. With that exception, all other persons
employed by government, by public enterprises or by autonomous public
institutions should benefit, according to the Committee, from the guarantees
provided for in Convention No. 98 in the same manner as other employees,
and consequently should be able to engage in collective bargaining in
DEMİR AND BAYKARA v. TURKEY JUDGMENT 37
respect of their conditions of employment, including wages (see
paragraph 43 above).
148. The Court further notes that ILO Convention No. 151 (which was
adopted in 1978, entered into force in 1981 and has been ratified by Turkey)
on labour relations in the public service (“Convention No. 151 concerning
Protection of the Right to Organise and Procedures for Determining
Conditions of Employment in the Public Service”) leaves States free to
choose whether or not members of the armed forces or of the police should
be accorded the right to take part in the determination of working
conditions, but provides that this right applies everywhere else in the public
service, if need be under specific conditions. In addition, the provisions of
Convention No. 151, under its Article 1 § 1, cannot be used to reduce the
extent of the guarantees provided for in Convention No. 98 (see
paragraph 44 above).
149. As to European instruments, the Court finds that the European
Social Charter, in its Article 6 § 2 (which Turkey has not ratified), affords to
all workers, and to all trade unions, the right to bargain collectively, thus
imposing on the public authorities the corresponding obligation to promote
actively a culture of dialogue and negotiation in the economy, so as to
ensure broad coverage for collective agreements. The Court observes,
however, that this obligation does not oblige authorities to enter into
collective agreements. According to the meaning attributed by the ECSR to
Article 6 § 2 of the Charter, which in fact fully applies to public officials,
States which impose restrictions on collective bargaining in the public
sector have an obligation, in order to comply with this provision, to arrange
for the involvement of staff representatives in the drafting of the applicable
employment regulations.
150. As to the European Union’s Charter of Fundamental Rights, which
is one of the most recent European instruments, it provides in Article 28 that
workers and employers, or their respective organisations, have, in
accordance with Community law and national laws and practices, the right
to negotiate and conclude collective agreements at the appropriate levels.
151. As to the practice of European States, the Court reiterates that, in
the vast majority of them, the right of civil servants to bargain collectively
with the authorities has been recognised, subject to various exceptions so as
to exclude certain areas regarded as sensitive or certain categories of civil
servants who hold exclusive powers of the State. In particular, the right of
public servants employed by local authorities and not holding State powers
to engage in collective bargaining in order to determine their wages and
working conditions has been recognised in the majority of Contracting
States. The remaining exceptions can be justified only by particular
circumstances (see paragraph 52 above).
152. It is also appropriate to take into account the evolution in the
Turkish situation since the application was lodged. Following its ratification
38 DEMİR AND BAYKARA v. TURKEY JUDGMENT
of ILO Convention No. 87 on Freedom of Association and Protection of the
Right to Organise, Turkey amended, in 1995, Article 53 of its Constitution
by inserting a paragraph providing for the right of trade unions formed by
public officials to take or defend court proceedings and to engage in
collective bargaining with authorities. Later on, Law no. 4688 of 25 June
2001 laid down the terms governing the exercise by civil servants of their
right to bargain collectively.
153. In the light of these developments, the Court considers that its
case-law to the effect that the right to bargain collectively and to enter into
collective agreements does not constitute an inherent element of Article 11
(see Swedish Engine Drivers’ Union, cited above, § 39, and Schmidt and
Dahlström, cited above, § 34) should be reconsidered, so as to take account
of the perceptible evolution in such matters, in both international law and
domestic legal systems. While it is in the interests of legal certainty,
foreseeability and equality before the law that the Court should not depart,
without good reason, from precedents established in previous cases, a
failure by the Court to maintain a dynamic and evolutive approach would
risk rendering it a bar to reform or improvement (see Vilho Eskelinen and
Others, cited above, § 56).
154. Consequently, the Court considers that, having regard to the
developments in labour law, both international and national, and to the
practice of Contracting States in such matters, the right to bargain
collectively with the employer has, in principle, become one of the essential
elements of the “right to form and to join trade unions for the protection of
[one’s] interests” set forth in Article 11 of the Convention, it being
understood that States remain free to organise their system so as, if
appropriate, to grant special status to representative trade unions. Like other
workers, civil servants, except in very specific cases, should enjoy such
rights, but without prejudice to the effects of any “lawful restrictions” that
may have to be imposed on “members of the administration of the State”
within the meaning of Article 11 § 2 – a category to which the applicants in
the present case do not, however, belong (see paragraphs 106-07 above).
(b) Application of the foregoing principles to the present case
155. In the light of the foregoing principles, the Court considers that the
trade union Tüm Bel Sen, already at the material time, enjoyed the right to
engage in collective bargaining with the employing authority, which had
moreover not disputed that fact. This right constituted one of the inherent
elements of the right to engage in trade-union activities, as secured to that
union by Article 11 of the Convention.
156. As to the impugned collective agreement entered into after
collective bargaining, the Grand Chamber, like the Chamber, takes note of
the following facts:
DEMİR AND BAYKARA v. TURKEY JUDGMENT 39
“In the first place, the trade union Tüm Bel Sen persuaded the employer, Gaziantep
Municipal Council, to engage in collective bargaining over questions that it regarded
as important for the interests of its members and to reach an agreement in order to
determine their reciprocal obligations and duties.
Subsequently, following those negotiations, a collective agreement was entered into
between the employer and the union Tüm Bel Sen. All the rights and obligations of its
members were provided for and protected under that agreement.
Moreover, the collective agreement was implemented. For a period of two years,
with the exception of certain financial provisions that were in dispute between the
parties, the collective agreement governed all employer-employee relations within
Gaziantep Municipal Council.”
157. Accordingly, the Court observes that the collective bargaining in
the present case and the resulting collective agreement constituted, for the
trade union concerned, an essential means to promote and secure the
interests of its members. The absence of the legislation necessary to give
effect to the provisions of the international labour conventions already
ratified by Turkey, and the Court of Cassation judgment of 6 December
1995 based on that absence, with the resulting de facto annulment ex tunc of
the collective agreement in question, constituted interference with the
applicants’ trade-union freedom as protected by Article 11 of the
Convention.
158. As to the applicants’ arguments concerning the insufficiency of the
new legislation with regard to the trade-union rights of civil servants, the
Court points out that the object of the present application does not extend to
the fact that the new Turkish legislation fails to impose on the authorities an
obligation to enter into collective agreements with civil servants’ trade
unions, or to the fact that those unions do not have the right to strike in the
event that their collective bargaining should prove unsuccessful.
4. Whether the interference was justified
159. The Court considers that the interference in question, namely the
annulment ex tunc of the collective agreement that the trade union Tüm Bel
Sen had entered into following collective bargaining with the authority that
employed the applicants, should be regarded as having breached Article 11,
unless it can be shown that it was “prescribed by law”, that it pursued one or
more legitimate aims, in accordance with § 2, and that it was “necessary in a
democratic society” to fulfil such aims.
(a) Prescription by law
160. The Government and the applicants agreed with the Chamber’s
finding that the interference in question was prescribed by law. For the
purposes of the present case, the Grand Chamber can accept that the
interference was prescribed by law, as interpreted by the combined civil
40 DEMİR AND BAYKARA v. TURKEY JUDGMENT
divisions of the Court of Cassation, the highest judicial body to have ruled
on the case.
(b) Pursuit of a legitimate aim
161. The Court can also accept, like the Chamber and the parties
themselves, that the interference in question, in so far as it aimed to prevent
discrepancy between law and practice, pursued a legitimate aim: the
prevention of disorder. As to the fact that the risk of such discrepancy was
the result of the time taken by the legislature to adapt the legislation to
Turkey’s international commitments in the field of international labour
standards, the Court considers that its assessment must likewise relate to the
question whether such a measure was necessary in a democratic society.
(c) Necessity in a democratic society
162. The Court refers in this connection to the case-law set out above
concerning the negative and positive obligations imposed on the
Government by Article 11 of the Convention (see paragraphs 109-11
above).
163. As to the application of these principles to the present case, the
Court notes that the Government have omitted to show how the impugned
restriction was necessary in a democratic society, standing by their principal
argument to the effect that the applicants, in their capacity as civil servants,
did not have the right to bargain collectively or enter into collective
agreements.
164. The Court, performing its own examination, considers that at the
material time a number of elements showed that the refusal to accept that
the applicants, as municipal civil servants, enjoyed the right to bargain
collectively and thus to persuade the authority to enter into a collective
agreement, did not correspond to a “pressing social need”.
165. Firstly, the right for civil servants to be able, in principle, to bargain
collectively, was recognised by international law instruments, both
universal (see paragraphs 147-48 above) and regional (see
paragraphs 149-50 above). Moreover, an examination of European practice
shows that this right was recognised in the majority of member States (see
paragraphs 52 and 151 above).
166. Secondly, Turkey had in 1952 ratified ILO Convention No. 98, the
principal instrument protecting, internationally, the right for workers to
bargain collectively and enter into collective agreements (see
paragraphs 42-43 and 151 above). There is no evidence in the case file to
show that the applicants’ union represented “public servants engaged in the
administration of the State”, that is to say, according to the interpretation of
the ILO Committee of Experts, officials whose activities are specific to the
administration of the State and who qualify for the exception provided for in
Article 6 of ILO Convention No. 98.
DEMİR AND BAYKARA v. TURKEY JUDGMENT 41
167. In these circumstances, the Grand Chamber shares the following
consideration of the Chamber:
“The Court cannot accept that the argument based on an omission in the law –
caused by a delay on the part of the legislature – was sufficient in itself to make the
annulment of a collective agreement which had been applied for the past two years
satisfy the conditions for any restriction of the freedom of association.”
168. Moreover, the Grand Chamber observes that the Government failed
to adduce evidence of any specific circumstances that could have justified
the exclusion of the applicants, as municipal civil servants, from the right,
inherent in their trade-union freedom, to bargain collectively in order to
enter into the agreement in question. The explanation that civil servants,
without distinction, enjoy a privileged position in relation to other workers
is not sufficient in this context.
169. The Court thus finds that the impugned interference, namely the
annulment ex tunc of the collective agreement entered into by the
applicants’ union following collective bargaining with the authority was not
“necessary in a democratic society”, within the meaning of Article 11 § 2 of
the Convention.
170. There has therefore been a violation of Article 11 of the
Convention on this point also, in respect of both the applicants’ trade union
and the applicants themselves.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
171. The applicants argued that the restrictions imposed on their
freedom to form trade unions and enter into collective agreements
constituted a discriminatory distinction for the purposes of Article 14 of the
Convention taken in conjunction with Article 11.
172. However, in view of its findings under Article 11, the Court, as did
the Chamber, does not consider it necessary to examine this complaint
separately.
Document No. 318
ECtHR, Enerji Yapi-Yol Sen v. Turkey (2009), paras 17–24
COUR EUROPÉENNE DES DROITS DE L'HOMME
EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF ENERJİ YAPI-YOL SEN v. TURKEY
(Application No. 68959/01)
JUDGMENT
STRASBOURG
April 21, 2009
FINAL
06/11/2009
This judgment may be subject to editorial revision.
[Unofficial translation]
[…]
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
16. The relevant domestic and international law is described in Demir and
Baykara v. Turkey [GC], no. 34503/97, §§ 34-52, November 12, 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
17. The applicant considers that circular no. 1996/21 infringed his right to
freedom of association. He invokes Article 11 of the Convention, which reads
as follows:
"1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others. This Article
shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration of the State."
18. The government fights this argument.
A. The existence of interference
19. At the outset, the Court recalls that in its admissibility decision of
January 31, 2008, it joined the Government's preliminary objection
concerning the applicant's lack of "victim" status with the merits of the case.
20. The claimant alleges that the contested circular, which prohibited civil
servants from taking part in a national strike day as part of collective actions
of meetings and demonstrations, amounted to an interference with the
exercise of his right to freedom of association.
21. The Government takes the view that the applicant was in no way
affected by the above-mentioned circular. It referred to the statutory
provisions and maintained that the circular had not prevented the applicant
from carrying out his lawful activities. It asserts that there has consequently
been no interference with the exercise of the applicant's right to freedom of
association within the meaning of Article 11 of the Convention.
22. The Court recalls that in order to be able to lodge an application under
Article 34, a natural person, a non-governmental organization or a group of
individuals must be able to claim to be "the victim of a violation (...) of the
rights set forth in the Convention (...)". To be able to claim to be the victim
of a violation, an individual must have directly suffered the effects of the
[Unofficial translation]
disputed measure (Ireland v. the United Kingdom, judgment of 18 January
1978, §§ 239-240, Series A no. 25; Eckle v. Germany, judgment o f 15 July
1982, § 66, Series A no. 51; Klass and others v. Germany, judgment of 6
September 1978, § 33, Series A no. 28). Thus, the Convention does not
contemplate the possibility of an actio popularis for the purposes of
interpreting the rights recognized in the Convention; nor does it authorize
individuals to complain about a provision of domestic law simply because it
seems to them, without their having directly experienced its effects, that it
violates the Convention (Norris v. Ireland, judgment of 26 October 1988,
Series A no. 142).
23. It is, however, open to an individual to argue that a law violates his or
her rights, in the absence of an individual act of enforcement, if the person
concerned is obliged to change his or her conduct on pain of prosecution
(Norris, cited above; Bowman v. United Kingdom, no. 24839/94, Reports of
Judgments and Decisions 1998-I) or if he or she belongs to a category of
persons likely to suffer directly from the effects of the legislation (Burden v.
the United Kingdom [GC], no. 13378/05, §§ 33-35, 29 April 2008; Johnston
and Others v. Ireland, judgment of 18 December 1986, Series A no. 112;
Open Door and Dublin Well Woman v. Ireland, judgment of October 29,
1992, Series A no. 246-A).
24. In the present case, the Court considers, in the light of these principles,
that the applicant trade union suffered directly from the effects of the disputed
circular and that it can therefore claim to be the victim of interference with
the exercise of its right to freedom of association. The Court observes that
circular no. 1996/21 prohibited civil servants from taking part in a national
strike day organized as part of the actions planned by the Federation of Public
Sector Unions for the recognition of the right to a collective agreement for
civil servants. Disciplinary measures were imposed on those who took part
(see paragraph 9 above). What the Convention requires, however, is that
legislation should enable trade unions, in a manner not contrary to Article 11,
to strive to defend the interests of their members (Schmidt and Dahlström v.
Sweden, 6 February 1976, §§ 34 and 36, Series A no. 21; Syndicat national
de la police belge v. Belgium, October 27, 1975, § 39, Series A no. 19;
Syndicat suédois des conducteurs de locomotives v. Sweden, February 6,
1976, § 40, Series A no. 20). Strike action, which enables a trade union to
make its voice heard, is an important aspect for the members of a trade union
in the protection of their interests (Schmidt and Dahlström, cited above, § 36).
The Court also notes that the right to strike is recognized by the supervisory
bodies of the International Labour Organization (ILO) as an intrinsic
corollary of the right to organize protected by ILO Convention C87 on
Freedom of Association and Protection of the Right to Organize (for the
Court's consideration of elements of international law other than the
Convention, see Demir and Baykara, supra). It points out that the European
Social Charter also recognizes the right to strike as a means of ensuring the
effective exercise of the right to collective bargaining. The Court therefore
rejects the Government's objection.
B. Justification for the interference
25. Such interference violates Article 11 of the Convention, unless it is
“prescribed by law”, pursues one or more legitimate aims under Article 11(2)
of the Convention, and is “necessary in a democratic society” for the
[Unofficial translation]
achievement of those aims.
1. "Prescribed by law”
26. The Court recalls that the words "provided for by law" mean in the
first place that the measure complained of must have a basis in domestic law,
that it understands the term "law" in its substantive rather than formal sense,
and that it has also included in it texts of "sub-legislative" rank enacted by the
competent authorities by virtue of a delegated normative power (Frérot v.
France, no. 70204/01, § 57, June 12, 2007; Lavents v. Latvia, no. 58442/00,
§ 135, November 28, 2002).
27. It considers that, in the present case, circular no. 1996/21, issued in the
exercise of a normative power, constituted the legal basis for the disputed
interference.
2. "Legitimate aim”
28. The Court doubts whether the interference in the present case pursued
a legitimate aim within the meaning of Article 11 § 2 of the Convention.
However, it considers it unnecessary to decide the question in view of the
conclusion it has reached as to the necessity of such interference (paragraph
3 below) (Urcan and others v. Turkey, nos. 23018/04, 23034/04, 23042/04,
23071/04, 23073/04, 23081/04, 23086/04, 23091/04, 23094/04, 23444/04 and
23676/04, § 29, July 17, 2008).
3. "Necessary in a democratic society”
29. Referring to the judgments in Syndicat national de la police belge
c. Belgium (cited above) and Schmidt and Dahlström (cited above), the
Government asserts that Article 11 of the Convention does not guarantee
trade unions specific treatment by the State.
[…]
[Unofficial translation]
Document No. 319
ECtHR, National Union of Rail, Maritime and Transport
Workers v. the United Kingdom (2014), paras 26–33, 75–
78 and 83–106
FOURTH SECTION
CASE OF NATIONAL UNION OF RAIL, MARITIME AND
TRANSPORT WORKERS v. THE UNITED KINGDOM
(Application no. 31045/10)
JUDGMENT
STRASBOURG
8 April 2014
FINAL
08/09/2014
This judgment has become final under Article 44 § 2 of the Convention.
NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS 9
v. THE UNITED KINGDOM JUDGMENT
the supply of goods or services between the employer in dispute and his
supplier or customer during the dispute; and (iii) that it was likely to achieve
that purpose.
24. The current rule was originally introduced by the Employment Act
1990, and then re-enacted in the 1992 Act in the terms set out above.
25. The parties provided statistical information on the number of days
lost to industrial action in the United Kingdom, going back to the 1970s.
The Government pointed out that in that decade, the average number of
days lost each year was 12.9 million. This decreased in the 1980s to an
average of 7.2 million days. From the early 1990s to the present day, the
figure is much lower, standing at 700,000 days lost per year on average.
They attributed part of this decline at least to the ban on secondary action.
The applicant union disputed that interpretation. It noted that the available
statistics did not distinguish between primary and secondary strikes. It was
therefore impossible to identify the true extent of secondary action before
1980 and, consequently, impossible to ascertain the impact of the
restrictions introduced in 1980 and 1990. In the applicant union’s view,
secondary action had been relatively rare, the overwhelming majority of
strikes at that time had been primary strikes. It referred to official figures
(contained in a Government publication, the “Employment Gazette”)
indicating that, since the 1960s, the United Kingdom was consistently close
to the European average for days lost to industrial action. According to this
source, the country had been middle-ranking since the end of the 1970s. The
only exception was for 1984, on account of the long and widespread strike
in the mining industry that year. The Government submitted that the
comparative statistics needed to be interpreted with caution, given the
profound transformation of Europe over the past twenty years. The fact that
the United Kingdom remained close to the European average in this regard
indicated that, contrary to the applicant union’s point of view, the rules on
industrial action were not so restrictive as to make it excessively difficult to
organise strikes.
III. RELEVANT INTERNATIONAL LAW
26. In support of its application, the applicant union included references
to other international legal instruments, and the interpretation given to them
by the competent organs. The most relevant and detailed of these materials
are referred to below.
A. International Labour Organization Conventions
27. While there is no provision in the Conventions adopted by the
International Labour Organization (ILO) expressly conferring a right to
strike, both the Committee on Freedom of Association and the Committee
10 NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS
v. THE UNITED KINGDOM JUDGMENT
of Experts on the Application of Conventions and Recommendations (“the
Committee of Experts”) have progressively developed a number of
principles on the right to strike, based on Articles 3 and 10 of the Freedom
of Association and Protection of the Right to Organise Convention,
1948 (No. 87) (summarised in “Giving globalization a human face”,
International Labour Office, 2012, § 117). This Convention was ratified by
the United Kingdom on 27 June 1949.
1. Concerning notice requirements
28. The Committee of Experts has commented several times upon the
notice requirements for industrial action in the United Kingdom. The
applicant union referred to the following statement, adopted in 2008:
“In its previous comments, the Committee had taken note of comments made by the
TUC to the effect that the notice requirements for an industrial action to be protected
by immunity were unjustifiably burdensome. The Committee notes that according to
the Government, a number of measures have already been taken to simplify sections
226-235 of the TULRA and 104-109 of the 1995 Order; moreover, as part of a plan
published in December 2006 to simplify aspects of employment law, the Government
explicitly invited trade unions to come forward with their ideas to simplify trade union
law further. Since then, the Government has held discussions with the TUC to
examine their ideas to simplify aspects of the law on industrial action ballots and
notices. These discussions are ongoing. The Committee notes that in its latest
comments, the TUC notes that there has been no progress in this reform. The
Committee requests the Government to indicate in its next report progress made
in this regard.”1
29. More recently, in a direct request to the Government of the United
Kingdom, the Committee of Experts stated:
“In its previous comments, the Committee had taken note of comments made by the
Trade Union Congress (TUC) to the effect that the notice requirements for an
industrial action to be protected by immunity were unjustifiably burdensome. The
Committee requested the Government to continue to provide information on any
developments, as well as any relevant statistics or reports on the practical application
and effect of these requirements. The Committee notes the Government’s indication
that the Court of Appeal decision in RMT v. Serco and in ASLEF v. London Midland
(2011) EWCA 226, overturned injunctions which had been obtained by Serco and
London Midland Railway against the two main national transport unions, the RMT
and ASLEF. In both cases, the injunctions had been obtained on the basis of the
unions’ breaches of statutory balloting and notification procedures. This case was the
latest in a series of cases assessing the extent of unions’ technical obligations to
ensure that a fair balloting process had taken place. In the RMT v. Serco decision, the
Court of Appeal issued some key clarification so that in future it is likely to be more
difficult for employers to obtain injunctions to prevent strike action as a result of
breaches of the balloting and notice requirements. A Court of Appeal decision is
binding on all lower courts. Subsequent to this case, in Balfour Beatty v. Unite (2012)
EWHC 267 (QB), the Court found against Balfour Beatty, taking account of the Serco
case and the need to strike a balance between striving for democratic legitimacy and
1. Bold text used in the original.
NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS 11
v. THE UNITED KINGDOM JUDGMENT
imposing unrealistic burdens on unions and their officers. The Committee notes the
TUC’s observation that, while it greatly welcomes both decisions, it considers that
they do not fully address the problems arising under the legislation that it has
identified and that the legislation continues to impose intolerable demands on trade
unions. The Committee notes these developments with interest and requests the
Government to provide its comments on the concerns raised by the TUC.”2
2. Concerning secondary action
30. The Committee of Experts has taken the following view (see
“Giving globalization a human face”, § 125):
“With regard to so-called ‘sympathy’ strikes, the Committee considers that a general
prohibition of this form of strike action could lead to abuse, particularly in the context
of globalization characterized by increasing interdependence and the
internationalization of production, and that workers should be able to take such action,
provided that the initial strike they are supporting is itself lawful.”
31. The Committee on Freedom of Association also considers this form
of industrial action to be protected by international labour law (see
“Freedom of Association”, Digest of the decisions and principles of the
Freedom of Association Committee of the Governing Body of the ILO, Fifth
(revised) edition, International Labour Office, 2006):
“534. A general prohibition of sympathy strikes could lead to abuse and workers
should be able to take such action provided the initial strike they are supporting is
itself lawful.
...
538. A ban on strike action not linked to a collective dispute to which the employee
or union is a party is contrary to the principles of freedom of association.”
32. In its consideration of the United Kingdom’s observance of
Convention No. 87, the Committee of Experts has repeatedly criticised the
fact that secondary strikes are illegal. The initial criticism was included in
its 19893 observation concerning the United Kingdom:
“The Committee notes that the common law renders virtually all forms of strikes or
other industrial action unlawful as a matter of civil law. This means that workers and
unions who engage in such action are liable to be sued for damages by employers
(or other parties) who suffer loss as a consequence, and (more importantly in practical
terms) may be restrained from committing unlawful acts by means of injunctions
(issued on both an interlocutory and a permanent basis). It appears to the Committee
that unrestricted access to such remedies would deny workers the right to take strikes
or other industrial action in order to protect and to promote their economic and social
interests.
It is most important, therefore, that workers and unions should have some measure
of protection against civil liability. There has been legislative recognition of this
imperative since 1906 in the form of a series of ‘immunities’ (or, more accurately,
‘protections’) against tort action for trade unions and their members and officials. The
2. Bold text used in the original.
3. That is, at a time when secondary action was merely restricted and not yet banned.
12 NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS
v. THE UNITED KINGDOM JUDGMENT
current version of the ‘immunities’ is to be found in the Trade Union and Labour
Relations Act 1974.
The scope of these protections has been narrowed in a number of respects since
1980. The Committee notes, for example, that section 15 of the 1974 Act has been
amended so as to limit the right to picket to a worker’s own place of work or, in the
case of a trade union official, the place of work of the relevant membership, whilst
section 17 of the 1980 Act removes protection from ‘secondary action’ in the sense of
action directed against an employer who is not directly a party to a given trade
dispute. In addition, the definition of ‘trade dispute’ in section 29 of the 1974 Act has
been narrowed so as to encompass only disputes between workers and their own
employer, rather than disputes between ‘employers and workers’ or ‘workers and
workers’ as was formerly the case.
Taken together, these changes appear to make it virtually impossible for workers
and unions lawfully to engage in any form of boycott activity, or ‘sympathetic’ action
against parties not directly involved in a given dispute. The Committee has never
expressed any decided view on the use of boycotts as an exercise of the right to strike.
However, it appears to the Committee that where a boycott relates directly to the
social and economic interests of the workers involved in either or both of the original
dispute and the secondary action, and where the original dispute and the secondary
action are not unlawful in themselves, then that boycott should be regarded as a
legitimate exercise of the right to strike. This is clearly consistent with the approach
the Committee has adopted in relation to ‘sympathy strikes’:
It would appear that more frequent recourse is being had to this form of action
(i.e. sympathy strikes) because of the structure or the concentration of industries or the
distribution of work centres in different regions of the world. The Committee
considers that a general prohibition of sympathy strikes could lead to abuse and that
workers should be able to take such action provided the initial strike they are
supporting is itself lawful.”
33. It appears that the Committee of Experts did not take a definitive
position on the ban until its 1995 observation concerning the United
Kingdom, when it observed as follows:
“The Committee draws the Government’s attention to paragraph 168 of its 1994
General Survey on Freedom of Association and Collective Bargaining where it
indicates that a general prohibition on sympathy strikes could lead to abuse and that
workers should be able to take such action, provided the initial strike they are
supporting is itself lawful. The lifting of immunity opens such industrial action to be
actionable in tort and therefore would constitute a serious impediment to the workers’
right to carry out sympathy strikes.”
It has maintained this view since, stating in its most recent review of the
situation (2012 observation, see Report of the Committee of Experts to the
International Labour Conference, 102nd Session, 2013, ILC.102/III(1A),
pp. 195-96).):
“Immunities in respect of civil liability for strikes and other industrial action
(sections 223 and 224 of the TULRA). In its previous comments, the Committee had
noted that according to the TUC, due to the decentralized nature of the industrial
relations system, it was essential for workers to be able to take action against
employers who are easily able to undermine union action by complex corporate
structures, transferring work, or hiving off companies. The Committee generally
NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS 13
v. THE UNITED KINGDOM JUDGMENT
raised the need to protect the right of workers to take industrial action in relation to
matters which affect them even though, in certain cases, the direct employer may not
be party to the dispute, and to participate in sympathy strikes provided the initial
strike they are supporting is itself lawful. The Committee takes note of the
Government indication that: (1) its position remains as set out in its report for
2006-08, that the rationale has not changed and that it therefore has no plans to change
the law in this area; and (2) this issue forms part of a matter brought before the ECHR
by the National Union of Rail, Maritime and Transport Workers (RMT) and that the
Court has yet to consider the case. The Committee recalls the previous concern it
raised that the globalization of the economy and the delocalization of work centres
may have a severe impact on the right of workers’ organizations to organize their
activities in a manner so as to defend effectively their members’ interests should
lawful industrial action be too restrictively defined. In these circumstances, the
Committee once again requests the Government to review sections 223 and 224 of
the TULRA, in full consultation with the social partners, and to provide further
information in its next report on the outcome of these consultations.”4
B. European Social Charter
34. The right to strike is protected by Article 6, paragraph 4, of the
European Social Charter, which the United Kingdom ratified on 11 July
1962. It provides as follows:
“With a view to ensuring the effective exercise of the right to bargain collectively,
the Contracting Parties undertake:
...
[to] recognise:
4. the right of workers and employers to collective action in cases of conflicts of
interest, including the right to strike, subject to obligations that might arise out of
collective agreements previously entered into.”
1. Concerning notice requirements
35. The European Committee on Social Rights (ECSR) has examined
the British rules on strike ballots and deemed them incompatible with the
proper exercise of the right to strike. In its most recent assessment of the
matter (Conclusions XIX-3, 2010) it stated:
“The Committee considered in its previous conclusions ... that the requirement to
give notice to an employer of a ballot on industrial action, in addition to the strike
notice that must be issued before taking action, is excessive (even the simplified
requirements introduced by the Employment Relations Act (ERA)2004). As there
have been no changes to the situation, the Committee reiterates its finding that the
situation is not in conformity with Article 6 § 4 of the Charter in this respect.”
4. Bold and italics used in original.
NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS 29
v. THE UNITED KINGDOM JUDGMENT
drivers in London during the 2012 Olympics, and one involving fuel lorry
drivers). The charge that workers were prevented from taking action against
the party that really determines their terms and conditions was no more than
a hypothesis – no actual examples had been given. Nor had there been any
decline in the number of days lost to strike action each year for the past
twenty years, which tended to refute Liberty’s view that domestic law had
increasingly restricted trade-union freedom. In this respect, the United
Kingdom was close to the European Union and Organisation for Economic
Co-operation and Development average. As to the assertion that the
threshold of twenty-one employees represented a loophole that employers
could easily exploit in order to avoid having to recognise a trade union, the
Government did not see its relevance to the facts of the case. Even so, there
were safeguards in place to prevent employers from circumventing their
statutory duty. Only genuine small firms were excluded, and that was for
valid policy reasons. Finally, the Government submitted that there was no
explicit support in the Court’s case-law for the proposition that the right to
take secondary action is an essential element of freedom of association, or
that the ban could not be justified under Article 11 § 2.
2. The Court’s assessment
(a) Applicability of Article 11
75. The Court must first determine whether, as the applicant union
argued, secondary action comes within the scope of Article 11 of the
Convention or, as the Government argued, it does not. The question is a
novel one, not having arisen directly in any previous case.
76. What the Government propose is a literal reading of the second
clause of the first paragraph of Article 11. Although it is possible to derive
such a meaning from the language of the text taken on its own, the Court
would observe that, as provided in Article 31 § 1 of the Vienna Convention
on the Law of Treaties, the provisions of a treaty are to be interpreted in
accordance with their ordinary meaning, in their context and in the light of
the treaty’s object and purpose. Furthermore, it has often stated that the
Convention cannot be interpreted in a vacuum but must be interpreted in
harmony with the general principles of international law. Account should be
taken, as indicated in Article 31 § 3 (c) of the Vienna Convention of “any
relevant rules of international law applicable in relations between the
parties”, and in particular the rules concerning the international protection
of human rights (see X v. Latvia [GC], no. 27853/09, § 92, ECHR 2013,
with further references therein). In this regard, it is clear from the passages
set out above (see paragraphs 26-37) that secondary action is recognised and
protected as part of trade-union freedom under ILO Convention No. 87 and
the European Social Charter. Although the Government have put a narrower
construction on the positions adopted by the supervisory bodies that operate
30 NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS
v. THE UNITED KINGDOM JUDGMENT
under these two instruments, these bodies have criticised the United
Kingdom’s ban on secondary action because of a perceived risk of abuse by
employers, and have illustrated this with some examples. The Government
further queried the authority, for the purposes of the Convention, to be
attributed to the interpretative pronouncements of the expert bodies tasked
with supervising compliance with these specialised international standards.
The Court will consider this later in its analysis. For now it suffices to refer
to the following passage from the judgment in Demir and Baykara v.Turkey
([GC], no. 34503/97, § 85, ECHR 2008):
“The Court, in defining the meaning of terms and notions in the text of the
Convention, can and must take into account elements of international law other than
the Convention, the interpretation of such elements by competent organs, and the
practice of European States reflecting their common values. ...”
It would be inconsistent with this method for the Court to adopt in
relation to Article 11 an interpretation of the scope of freedom of
association of trade unions that is much narrower than that which prevails in
international law. In addition, such an understanding of trade-union freedom
finds further support in the practice of many European States that have long
accepted secondary strikes as a lawful form of trade-union action.
77. It may well be that, by its nature, secondary industrial action
constitutes an accessory rather than a core aspect of trade-union freedom, a
point to which the Court will revert in the next stage of its analysis.
Nonetheless, the taking of secondary industrial action by a trade union,
including strike action, against one employer in order to further a dispute in
which the union’s members are engaged with another employer must be
regarded as part of trade-union activity covered by Article 11.
78. The Court therefore concludes that the applicant union’s wish to
organise secondary action in support of the Hydrex employees must be seen
as a wish to exercise, free of a restriction imposed by national law, its right
to freedom of association within the meaning of Article 11 § 1 of the
Convention. It follows that the statutory ban on secondary action as it
operated in the example relied on by the applicant union constitutes an
interference with its rights under this provision. To be compatible with
paragraph 2 of Article 11, such interference must be shown to be
“prescribed by law”, to pursue a legitimate aim, and to be “necessary in a
democratic society” to achieve those aims.
(b) Lawfulness and legitimacy of the interference
79. There was no dispute between the parties that the interference was
prescribed by law. The Court agrees.
80. As to the aim of the interference, the applicant union argued that it
found no legitimation in Article 11 § 2. It clearly did not concern national
security or public safety, the prevention of disorder or crime, or the
protection of health or morals. As for the remaining aim recognised as
32 NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS
v. THE UNITED KINGDOM JUDGMENT
of such a strike on members of the public was irrelevant to the legal issues
arising. This Court took the same view, and for this reason the aim of
“protection of the rights and freedoms of others” was taken in the
circumstances as referring just to the employer’s rights. The ground for
distinguishing the present case is the fact that it concerns secondary action.
As the Government have argued, by its nature secondary action may well
have much broader ramifications than primary action. It has the potential to
impinge upon the rights of persons not party to the industrial dispute, to
cause broad disruption within the economy and to affect the delivery of
services to the public. Accordingly, the Court is satisfied that in banning
secondary action, Parliament pursued the legitimate aim of protecting the
rights and freedoms of others, not limited to the employer side in an
industrial dispute.
(c) Necessity in a democratic society
83. It remains to be determined whether the statutory ban on secondary
industrial action, in as much as it affected the ability of the applicant union
to protect the interests of its Hydrex members, can be regarded as being
“necessary in a democratic society”. To be so considered, it must be shown
that the interference complained of corresponded to a “pressing social
need”, that the reasons given by the national authorities to justify it were
relevant and sufficient and that it was proportionate to the legitimate aim
pursued.
84. The Court will first consider the applicant union’s argument that the
right to take strike action must be regarded as an essential element of tradeunion
freedom under Article 11, so that to restrict it would be to impair the
very essence of freedom of association. It observes that it has already
decided a number of cases in which restrictions on industrial action were
found to have given rise to violations of Article 11 (see, for example,
Karaçay, cited above; Dilek and Others v. Turkey, nos. 74611/01, 26876/02
and 27628/02, 17 July 2007; Urcan and Others v. Turkey, nos. 23018/04
and 10 others, 17 July 2008; and Enerji Yapı-Yol Sen v. Turkey,
no. 68959/01, 21 April 2009). The applicant union placed great emphasis on
the last of these judgments, in which the term “indispensable corollary” was
used in relation to the right to strike, linking it to the right to organise (see
Enerji Yapı-Yol Sen, cited above, § 24). It should, however, be noted that
the judgment was here adverting to the position adopted by the supervisory
bodies of the ILO rather than evolving the interpretation of Article 11 by
conferring a privileged status on the right to strike. More generally, what the
above-mentioned cases illustrate is that strike action is clearly protected by
Article 11. The Court does not therefore discern any need in the present case
to determine whether the taking of industrial action should now be accorded
the status of an essential element of the Article 11 guarantee.
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v. THE UNITED KINGDOM JUDGMENT
85. What the circumstances of this case show is that the applicant union
in fact exercised two of the elements of freedom of association that have
been identified as essential, namely, the right for a trade union to seek to
persuade the employer to hear what it has to say on behalf of its members,
and the right to engage in collective bargaining. The strike by its Hydrex
members was part of that exercise, and while it did not achieve its aim, it
was not in vain either since it led the company to revise its offer, which the
applicant union then commended to its members. Although the Government
criticised the applicant union for supporting the revised offer at the time and
then reversing its stance in the present proceedings, the Court recognises
that the union was bound to respect its members’ negative vote. Yet the fact
that the process of collective bargaining and industrial action, including
strike action against the employer of the union members who were the
subject of the dispute, did not lead to the outcome desired by the applicant
union and its members does not mean that the exercise of their Article 11
rights was illusory. The right to collective bargaining has not been
interpreted as including a “right” to a collective agreement (see, in this
respect, Demir and Baykara, cited above, § 158, where the Court observed
that the absence of any obligation on the authorities to actually enter into a
collective agreement was not part of the case). Nor does the right to strike
imply a right to prevail. As the Court has often stated, what the Convention
requires is that under national law trade unions should be enabled, in
conditions not at variance with Article 11, to strive for the protection of
their members’ interests (ibid., § 141, and, more recently Sindicatul
“Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 34, ECHR 2013). This
the applicant union and its members involved in the dispute were largely
able to do in the present case.
86. In previous trade-union cases, the Court has stated that regard must
be had to the fair balance to be struck between the competing interests of the
individual and of the community as a whole. Since achieving a proper
balance between the interests of labour and management involves sensitive
social and political issues, the Contracting States must be afforded a margin
of appreciation as to how trade-union freedom and protection of the
occupational interests of union members may be secured. In its most recent
restatement of this point the Grand Chamber, referring to the high degree of
divergence it observed between the domestic systems in this field,
considered that the margin should be a wide one (see Sindicatul “Păstorul
cel Bun”, cited above, § 133). The applicant union relied heavily on Demir
and Baykara (cited above, § 119) in which the Court considered that the
respondent State should be allowed only a limited margin. The Court would
point out, however, that the passage in question appears in the part of the
judgment examining a very far-reaching interference with freedom of
association, one that intruded into its inner core, namely the dissolution of a
trade union. It is not to be understood as narrowing decisively and
34 NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS
v. THE UNITED KINGDOM JUDGMENT
definitively the domestic authorities’ margin of appreciation in relation to
regulating, through normal democratic processes, the exercise of tradeunion
freedom within the social and economic framework of the country
concerned. The breadth of the margin will still depend on the factors that the
Court in its case-law has identified as relevant, including the nature and
extent of the restriction on the trade-union right in issue, the object pursued
by the contested restriction, and the competing rights and interests of other
individuals in society who are liable to suffer as a result of the unrestricted
exercise of that right. The degree of common ground between the member
States of the Council of Europe in relation to the issue arising in the case
may also be relevant, as may any international consensus reflected in the
apposite international instruments (see Demir and Baykara, cited above,
§ 85).
87. If a legislative restriction strikes at the core of trade-union activity, a
lesser margin of appreciation is to be recognised to the national legislature
and more is required to justify the proportionality of the resultant
interference, in the general interest, with the exercise of trade-union
freedom. Conversely, if it is not the core but a secondary or accessory
aspect of trade-union activity that is affected, the margin is wider and the
interference is, by its nature, more likely to be proportionate as far as its
consequences for the exercise of trade-union freedom are concerned.
88. As to the nature and extent of the interference suffered in the present
case by the applicant union in the exercise of its trade-union freedom, the
Court considers that it was not as invasive as the applicant union would
have it. What the facts of the case reveal is that it held a strike, albeit on a
limited scale and with limited results. It was its wish to escalate the strike,
through the threatened or actual involvement of hundreds of its members at
Jarvis, another, separate, company not at all involved in the trade dispute in
question, that was frustrated. The Court has noted the applicant union’s
conviction that secondary action would have won the day. Inevitably, that
can only be a matter of speculation – including as to the result of any ballot
on the subject – since that course of action was clearly ruled out. It cannot
be said that the effect of the ban on secondary action struck at the very
substance of the applicant union’s freedom of association. On this ground
the case is to be distinguished from those referred to in paragraph 84 above,
which all concerned restrictions on “primary” or direct industrial action by
public-sector employees; and the margin of appreciation to be recognised to
the national authorities is the wider one available in relation to the
regulation, in the public interest, of the secondary aspects of trade-union
activity.
89. As for the object of the interference in issue in the present case, the
extracts from the debates in Parliament preceding the passage of the
Employment Act 1980 make clear the legislative intention to strike a new
balance in industrial relations, in the interests of the broader economy, by
NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS 35
v. THE UNITED KINGDOM JUDGMENT
curbing what was a very broad right to take secondary action. A decade
later, the government of the day considered that even in its more limited
form secondary action posed a threat to the economy and to inward
investment in the country’s economic activity. As a matter of policy it
considered that restricting industrial action to primary strikes would achieve
a more acceptable balance within the British economy. The Government
have reiterated that position in the present proceedings. That assessment
was sharply contested at the time by the opposition in Parliament, and is
rejected by the applicant union as grounded in animus towards trade unions
rather than any clear evidence of direct damage to the economy. Yet the
subject matter in this case is certainly related to the social and economic
strategy of the respondent State. In this regard the Court has usually allowed
a wide margin of appreciation since, by virtue of their direct knowledge of
their society and its needs, the national authorities, and in particular the
democratically elected Parliaments, are in principle better placed than the
international judge to appreciate what is in the public interest on social or
economic grounds and which legislative measures are best suited for the
conditions in their country in order to implement the chosen social,
economic or industrial policy (see, among many authorities, Stummer v.
Austria [GC], no. 37452/02, § 89, ECHR 2011).
90. There are, it is true, factors going in another direction as regards the
range of permissible choices available to the United Kingdom legislature.
91. The first of these is the extent to which it can be said that there is
common ground among European States as regards secondary action. The
comparative information adduced before the Court reveals a spectrum of
national positions, ranging from a broadly permissive stance in countries
such as Greece, Finland, Norway and Sweden, to those that do not recognise
or permit it. The other States mentioned above (see paragraphs 38-41) are
located between these two outer points. The Government played down the
significance of the comparative perspective, emphasising the deep structural
and cultural differences among European States in the field of industrial
relations. The Court acknowledges that diversity, which it has recognised in
other cases concerning the rights of trade unions (see, for example,
Sindicatul “Păstorul cel Bun”, cited above, § 133, and Sørensen and
Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 58, ECHR
2006-I). It is nevertheless clear that, with its outright ban on secondary
action, the respondent State stands at one end of the comparative spectrum,
being one of a small group of European States to adopt such a categorical
stance on the matter. The varied comparative picture, and the position of the
United Kingdom within it, do not in themselves, however, mean that the
domestic authorities have overstepped their legitimate margin of
appreciation in regulating this aspect of trade-union activity.
92. Secondly, a prominent feature of this case is the wealth of
international-law material. The United Kingdom banned secondary action
36 NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS
v. THE UNITED KINGDOM JUDGMENT
more than two decades ago and throughout this time has been subject to
critical comments by the ILO Committee of Experts and the ECSR. The
applicant union prayed these materials in aid. The Government did not
consider the particular criticisms made to be relevant to the factual situation
denounced in the present case, or otherwise significant. The Court will now
examine this point.
93. The Government disputed the relevance to this case of the two
bodies’ criticisms in light of the manner in which they were formulated, as
they contemplated quite different potential situations to the one impugned
by the applicant union (see paragraphs 33 and 37 above).
94. The Government did not regard the ECSR’s assessment as an
authoritative source of law, since, despite the independence and expertise of
its members, the ECSR did not possess judicial or quasi-judicial status. Its
role was to report to the Committee of Ministers. The Court observes that
the ECSR’s competence is stipulated in the Protocol amending the
European Social Charter (also known as the “Turin Protocol”, Council of
Europe Treaty Series No. 142), namely to “assess from a legal standpoint
the compliance of national law and practice with the obligations arising
from the Charter”. It is true that this Protocol has not come into force as
several States Parties to the Charter, including the United Kingdom, have
not ratified it. Yet the interpretative value of the ECSR appears to be
generally accepted by States and by the Committee of Ministers. It is
certainly accepted by the Court, which has repeatedly had regard to the
ECSR’s interpretation of the Charter and its assessment of State compliance
with its various provisions (see, for example, Demir and Baykara, cited
above; see also Tüm Haber Sen and Çınar v. Turkey, no. 28602/95, § 39,
ECHR 2006-II, a trade-union case in which the Court described the ECSR
as a “particularly qualified” body in this domain).
95. As for the absence of any recommendation by the Committee of
Ministers to the United Kingdom in relation to this issue, the Court notes
first of all that the role of the Committee of Ministers under the Turin
Protocol is to address recommendations to States on a selective basis,
guided by social, economic and other policy considerations. Its role is not to
endorse the conclusions of the ECSR. Secondly, the Court notes that the
Governmental Committee of the European Social Charter has taken a first
step in the direction of a Committee of Ministers’ recommendation on the
issue of secondary action, by adopting a warning to the United Kingdom
that “urged the Government to take all adequate steps to bring the situation
into conformity with the Charter” (see its Report concerning
Conclusions XIX-3 (2010), T-SG(2012)1_final, at p. 59).
96. With respect to the ILO Committee of Experts, the Government
made a similar observation – that body was not formally competent to give
authoritative interpretations to ILO Conventions. It drew the Court’s
attention to an ongoing disagreement within the ILO precisely regarding the
NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS 37
v. THE UNITED KINGDOM JUDGMENT
legal status or even existence of a right to strike. The Committee of Experts
had recently recognised the limits of its role, stating that “[its] opinions and
recommendations are not binding within the ILO supervisory process and
are not binding outside the ILO unless an international instrument expressly
establishes them as such or the Supreme Court of a country so decides of its
own volition” (from the foreword to “Collective Bargaining in the Public
Service: A way forward”, a report of the ILO Committee of Experts to the
102nd session of the International Labour Conference, 2013). This text goes
on to describe the Committee of Expert’s interpretations as “soft law”. The
foreword concludes (§ 8):
“As regards the interpretation of ILO Conventions and the role of the International
Court of Justice in this area, the Committee has pointed out since 1990 that its terms
of reference do not enable it to give definitive interpretations of Conventions,
competence to do so being vested in the International Court of Justice by article 37 of
the Constitution of the ILO. It has stated, nevertheless, that in order to carry out its
function of determining whether the requirements of Conventions are being respected,
the Committee has to consider the content and meaning of the provisions of
Conventions, to determine their legal scope, and where appropriate to express its
views on these matters. The Committee has consequently considered that, in so far as
its views are not contradicted by the International Court of Justice, they should be
considered as valid and generally recognized. The Committee considers the
acceptance of these considerations to be indispensable to maintaining the principle of
legality and, consequently, to the certainty of law required for the proper functioning
of the International Labour Organization.”
97. The Court does not consider that this clarification requires it to
reconsider this body’s role as a point of reference and guidance for the
interpretation of certain provisions of the Convention (see, more generally,
Demir and Baykara, cited above, §§ 65-86). While the Government referred
to disagreements voiced at the 101st International Labour Conference, 2012,
it appears from the records of that meeting that the disagreement originated
with and was confined to the employer group (Provisional Record of the
101st Session of the International Labour Conference, No. 19 (Rev.),
§§ 82-90). The governments who took the floor during that discussion were
reported as saying that the right to strike was “well established and widely
accepted as a fundamental right”. The representative of the government of
Norway added that her country fully accepted the Committee of Experts’
interpretation that the right to strike was protected under Convention
No. 87. In any event, the respondent Government accepted in the present
proceedings that the right afforded under Article 11 to join a trade union
normally implied the ability to strike (see paragraph 62 above).
98. The foregoing analysis of the interpretative opinions emitted by the
competent bodies set up under the most relevant international instruments
mirrors the conclusion reached on the comparative material before the
Court, to wit that with its outright ban on secondary industrial action, the
respondent State finds itself at the most restrictive end of a spectrum of
38 NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS
v. THE UNITED KINGDOM JUDGMENT
national regulatory approaches on this point and is out of line with a
discernible international trend calling for a less restrictive approach. The
significance that such a conclusion may have for the Court’s assessment in a
given case was explained in Demir and Baykara (cited above, § 85) in the
following terms:
“... The consensus emerging from specialised international instruments and from the
practice of Contracting States may constitute a relevant consideration for the Court
when it interprets the provisions of the Convention in specific cases.”
The Grand Chamber’s statement reflects the distinct character of the
Court’s review compared with that of the supervisory procedures of the ILO
and the European Social Charter. The specialised international monitoring
bodies operating under those procedures have a different standpoint, shown
in the more general terms used to analyse the ban on secondary action (see
paragraphs 33 and 37 above). In contrast, it is not the Court’s task to review
the relevant domestic law in the abstract, but to determine whether the
manner in which it actually affected the applicant infringed the latter’s
rights under Article 11 of the Convention (see Von Hannover v. Germany
(no. 2) [GC], nos. 40660/08 and 60641/08, § 116, ECHR 2012; see also
Kart v. Turkey [GC], no. 8917/05, §§ 85-87, ECHR 2009). The applicant
union as well as the third parties dwelt on the possible effect of the ban in
various hypothetical scenarios, which could go as far as to exclude any form
of industrial action at all if the workers directly concerned were not in a
position to take primary action, thereby, unlike in the present case, striking
at the very substance of trade-union freedom. They also considered that the
ban could make it easy for employers to exploit the law to their advantage
through resort to various legal stratagems, such as delocalising work
centres, outsourcing work to other companies and adopting complex
corporate structures in order to transfer work to separate legal entities or to
hive off companies. In short, trade unions could find themselves severely
hampered in the performance of their legitimate, normal activities in
protecting their members’ interests. These alleged, far-reaching negative
effects of the statutory ban do not, however, arise in the situation at Hydrex.
The Court’s review is bounded by the facts submitted for examination in the
case. This being so, the Court considers that the negative assessments made
by the relevant monitoring bodies of the ILO and European Social Charter
are not of such persuasive weight for determining whether the operation of
the statutory ban on secondary strikes in circumstances such as those
complained of in the present case remained within the range of permissible
options open to the national authorities under Article 11 of the Convention.
99. The domestic authorities’ power of appreciation is not unlimited,
however, but goes hand in hand with European supervision, it being the
Court’s task to give a final ruling on whether a particular restriction is
reconcilable with freedom of association as protected by Article 11 (see
Vörður Ólafsson v. Iceland, no. 20161/06, § 76, ECHR 2010). The
NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS 39
v. THE UNITED KINGDOM JUDGMENT
Government have argued that the “pressing social need” for maintaining the
statutory ban on secondary strikes is to shield the domestic economy from
the disruptive effects of such industrial action, which, if permitted, would
pose a risk to the country’s economic recovery. In the sphere of social and
economic policy, which must be taken to include a country’s industrialrelations
policy, the Court will generally respect the legislature’s policy
choice unless it is “manifestly without reasonable foundation” (see Carson
and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010).
Moreover, the Court has recognised the “special weight” to be accorded to
the role of the domestic policy-maker in matters of general policy on which
opinions within a democratic society may reasonably differ widely (see, in
the context of Article 10 of the Convention, MGN Limited v. the United
Kingdom, no. 39401/04, § 200, 18 January 2011, referring in turn to Hatton
and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR
2003-VIII, where the Court adverted to the “direct democratic legitimation”
that the legislature enjoys). The ban on secondary action has remained intact
for over twenty years, notwithstanding two changes of government during
that time. This denotes a democratic consensus in support of it, and an
acceptance of the reasons for it, which span a broad spectrum of political
opinion in the United Kingdom. These considerations lead the Court to
conclude that in their assessment of how the broader public interest is best
served in their country in the often charged political, social and economic
context of industrial relations, the domestic legislative authorities relied on
reasons that were both relevant and sufficient for the purposes of Article 11.
100. The Court must also examine whether or not the contested restriction
offended the principle of proportionality. The applicant union argued that it
did, given its absolute character, which completely excluded any balancing
of the competing rights and interests at stake and prohibited any
differentiation between situations. The Government defended the
legislature’s decision to eschew case-by-case consideration in favour of a
uniform rule, and contended that any less restrictive approach would be
impracticable and ineffective. In their submission, the inevitable variations
in the potentially numerous individual cases such as the present one are not
such as to disturb the overall balance struck by Parliament.
101. The Court observes that the general character of a law justifying an
interference is not inherently offensive to the principle of proportionality.
As it has recently stated, a State may, consistently with the Convention,
adopt general legislative measures applying to predefined situations without
providing for individualised assessments with regard to the individual,
necessarily differing and perhaps complex circumstances of each single case
governed by the legislation (see Animal Defenders International v. the
United Kingdom [GC], no. 48876/08, § 107, ECHR 2013, with many further
references concerning different provisions of the Convention and Protocol
No. 1). That does not mean the specific facts of the individual case are
40 NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS
v. THE UNITED KINGDOM JUDGMENT
without significance for the Court’s analysis of proportionality. Indeed, they
evidence the impact in practice of the general measure and are thus material
to its proportionality (ibid., § 108). As already stated, the interference with
the applicant union’s freedom of association in the set of facts at Hydrex
relied on by it cannot objectively be regarded as especially far reaching.
102. The risks attendant upon any relaxation of the ban constitute a
relevant consideration, which is primarily for the State to assess (ibid.,
§ 108). In this respect, the applicant union has argued that it would have
limited its action to a secondary strike at Jarvis, with no further spill-over
effects. That can only be a matter of speculation however. As the materials
in the case file show, the very reason that caused Parliament to curb the
broad scope for secondary action was its capacity, pre-1980, to spread far
and fast beyond the original industrial dispute. It is to that situation that,
according to the applicant union, the United Kingdom should return if it is
to conform to the requirements of Article 11.
103. As has been recognised in the case-law, it is legitimate for the
authorities to be guided by considerations of feasibility, as well as of the
practical difficulties – which, for some legislative schemes, may well be
large-scale – to which an individuated approach could give rise, such as
uncertainty, endless litigation, disproportionate public expenditure to the
detriment of the taxpayer and possibly arbitrariness (ibid.). In this regard it
is relevant to note that for a period of ten years, 1980-90, the United
Kingdom found it possible to operate with a lighter restriction on secondary
action (see paragraphs 23-24 above). The Government have not argued that
this legislative regime was attended by the difficulties referred to above, or
that this was why the ban was introduced. The applicant union did not
comment in detail on the legal position during that period. It took the view
that the question of its compatibility with the Convention was “of entirely
academic interest”, though added that were the point relevant it would argue
such a restriction would not be acceptable. The Court observes that,
although the legislative history of the United Kingdom points to the
existence of conceivable alternatives to the ban, that is not determinative of
the matter. For the question is not whether less restrictive rules should have
been adopted or whether the State can establish that, without the
prohibition, the legitimate aim would not be achieved. It is rather whether,
in adopting the general measure it did, the legislature acted within the
margin of appreciation afforded to it (see Animal Defenders, cited above,
§ 110) – which, for the reasons developed above, the Court has found to be
a broad one – and whether, overall, a fair balance was struck. Although the
applicant union has adduced cogent arguments of trade-union solidarity and
efficacy, these have not persuaded the Court that the United Kingdom
Parliament lacked sufficient policy and factual reasons to consider the
impugned ban on secondary industrial action as being “necessary in a
democratic society”.
NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS 41
v. THE UNITED KINGDOM JUDGMENT
104. The foregoing considerations lead the Court to conclude that the
facts of the specific situation challenged in the present case do not disclose
an unjustified interference with the applicant union’s right to freedom of
association, the essential elements of which it was able to exercise, in
representing its members, in negotiating with the employer on behalf of its
members who were in dispute with the employer and in organising a strike
of those members at their place of work (see paragraphs 15-16 above). In
this legislative policy area of recognised sensitivity, the respondent State
enjoys a margin of appreciation broad enough to encompass the existing
statutory ban on secondary action, there being no basis in the circumstances
of this case to consider the operation of that ban in relation to the impugned
facts at Hydrex as entailing a disproportionate restriction on the applicant
union’s right under Article 11.
105. Accordingly, no violation of Article 11 of the Convention can be
held to have occurred on the facts of the present case.
106. In closing, the Court would stress that its jurisdiction is limited to
the Convention. It has no competence to assess the respondent State’s
compliance with the relevant standards of the ILO or the European Social
Charter, the latter containing a more specific and exacting norm regarding
industrial action. Nor should the conclusion reached in this case be
understood as calling into question the analysis effected on the basis of
those standards and their purposes by the ILO Committee of Experts and by
the ECSR.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the merits the Government’s preliminary objection and declares
the complaint concerning the ban on secondary action admissible and
the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 11 of the Convention.
Done in English, and notified in writing on 8 April 2014 pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta Ziemele
Deputy Registrar President
Document No. 320
ECtHR, Ognevenko v. Russia (2018), paras 20–23 and
54–59
THIRD SECTION
CASE OF OGNEVENKO v. RUSSIA
(Application no. 44873/09)
JUDGMENT
STRASBOURG
20 November 2018
FINAL
06/05/2019
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
8 OGNEVENKO v. RUSSIA JUDGMENT
in a democratic society in the interests of national security or public order or for the
protection of the rights and freedoms of others;
...
(d) The right to strike, provided that it is exercised in conformity with the laws of
the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise
of these rights by members of the armed forces or of the police or of the
administration of the State ...”
B. International Labour Organisation (“ILO”) material
1. ILO principles concerning the right to strike
20. In its Digest of decisions and principles (fifth (revised) edition,
2006) the ILO Committee of Freedom of Association (“the CFA”) stated as
follows in the Section entitled “Right to strike” (the quotations below are
provided without the references to specific cases):
“541. The Committee has stated on many occasions that strikes at the national level
are legitimate in so far as they have economic and social objectives and not purely
political ones; the prohibition of strikes could only be acceptable in the case of public
servants exercising authority in the name of the State or of workers in essential
services in the strict sense of the term, i.e. services whose interruption could endanger
the life, personal safety or health of the whole or part of the population.
...
587. The following do not constitute essential services in the strict sense of the term:
...
– transport generally;
...
– railway services;
...
592. By linking restrictions on strike action to interference with trade and
commerce, a broad range of legitimate strike action could be impeded. While the
economic impact of industrial action and its effect on trade and commerce may be
regrettable, such consequences in and of themselves do not render a service
“essential”, and thus the right to strike should be maintained.
...
595. Where the right to strike is restricted or prohibited in certain essential
undertakings or services, adequate protection should be given to the workers to
compensate for the limitation thereby placed on their freedom of action with regard to
disputes affecting such undertakings and services.
596. As regards the nature of appropriate guarantees in cases where restrictions are
placed on the right to strike in essential services and public services ... should be
accompanied by adequate, impartial and speedy conciliation and arbitration
OGNEVENKO v. RUSSIA JUDGMENT 9
proceedings in which the parties concerned can take part at every stage and in which
awards, once made, are fully and promptly implemented.
...
621. The transportation of passengers and commercial goods is not an essential
service in the strict sense of the term; however, this is a public service of primary
importance where the requirement of a minimum service in the event of a strike can
be justified.
...
628. Responsibility for declaring a strike illegal should not lie with the government,
but with an independent body which has the confidence of the parties involved.
...
666. The use of extremely serious measures, such as dismissal of workers for having
participated in a strike and refusal to re-employ them, implies a serious risk of abuse
and constitutes a violation of freedom of association.”
2. Relevant case-law in respect of Russia
21. In its Report no. 333, March 2004, on case no. 2251 the CFA found
in respect of Russia as follows:
“993. ... The Committee recalls that the right to strike may be restricted or
prohibited: (1) in the public service only for public servants exercising authority in the
name of the state; (2) in essential services in the strict sense of the term (that is,
services the interruption of which would endanger the life, personal safety or health of
the whole or part of the population); and (3) in the event of an acute national
emergency [see Digest, op. cit., paras. 526 and 527]. ... As concerns the
abovementioned categories of workers, who, according to the relevant federal laws,
cannot recourse to a strike action, the Committee notes that the list includes
employees of railway, which does not constitute essential services in the strict sense
of the term. The Committee therefore requests the Government to amend its
legislation so as to ensure that railway employees ... enjoy the right to strike.”
22. The ILO Committee of Experts on the Application of Conventions
and Recommendations (“the CEACR”) similarly reiterated in respect of
Russia that the right to strike may be restricted or prohibited only in respect
of public servants exercising authority in the name of the State and in
essential services in the strict sense of the term – that is to say services
whose interruption would endanger the life, personal safety or health of the
whole or part of the population.
23. The CEACR also reminded Russia that railway transport did not
constitute an essential service in the strict sense of the term whereby strikes
could be prohibited and that instead, a negotiated minimum service could be
established. It continues to request Russia to ensure that railway workers
can exercise the right to strike.
OGNEVENKO v. RUSSIA JUDGMENT 17
49. The applicant also stressed that the employer could have contested
the lawfulness of the strike before a court, as required by Article 413 of
the LC, but failed to do so.
50. He thus concluded that the strike itself and his participation in it had
been lawful and that his dismissal had consequently not been in accordance
with the law.
51. On the basis of the lack of any evidence of the alleged threat to the
country’s defence, State security or the life and health of people posed by
strikes, the applicant also considered that the restriction on his right to strike
had had no legitimate aim.
(iv) The interference was not necessary in a democratic society
52. The applicant reiterated that the test of necessity in a democratic
society required the Court to determine whether the interference complained
of had corresponded to a “pressing social need”, whether it had been
proportionate to the legitimate aim pursued and whether the reasons given
by the national authorities to justify it had been relevant and sufficient (see,
for instance, Federation of Offshore Workers’ Trade Unions and Others
v. Norway (dec.), no. 38190/97, ECHR 2002-VI). The applicant considered
that his dismissal from work had not been proportionate to his participation
in a lawful strike. He also relied on the ILO CFA’s case-law to the effect
that no one should be penalised for participating in a strike action.
53. The applicant thus considered that his dismissal for participation in a
lawful strike had violated Article 11 of the Convention.
2. The Court’s assessment
(a) General principles
54. The Court reiterates that Article 11 § 1 presents trade union freedom
as one form or a special aspect of freedom of association (see National
Union of Belgian Police, cited above, § 38; Swedish Engine Drivers’ Union
v. Sweden, judgment of 6 February 1976, § 39, Series A no. 20; Tüm Haber
Sen and Çınar v. Turkey, no. 28602/95, § 28, ECHR 2006-II; and Demir
and Baykara, cited above, § 109).
55. The words “for the protection of [one’s] interests” which appear in
Article 11 § 1 are not redundant and the Convention safeguards freedom to
protect the occupational interests of trade union members by trade union
action, the conduct and development of which the Contracting States must
both permit and make possible (see National Union of Belgian Police, cited
above, § 39; Swedish Engine Drivers’ Union, cited above, § 40; and Wilson,
National Union of Journalists and Others, cited above, § 42). A trade union
must thus be free to strive for the protection of its members’ interests, and
its individual members have a right, in order to protect their interests, that
that trade union should be heard (see National Union of Belgian Police,
18 OGNEVENKO v. RUSSIA JUDGMENT
cited above, §§ 39-40, and Swedish Engine Drivers’ Union, cited above,
§§ 40-41). Another essential right of a trade union is the right to collectively
bargain with an employer (see Demir and Baykara, cited above, § 154).
56. Article 11 of the Convention does not secure any particular treatment
of trade unions or their members and leaves each State a free choice of the
means to be used to secure a trade union’s freedom to protect the
occupational interests of its members (see National Union of Belgian
Police, cited above, §§ 38-39; Swedish Engine Drivers’ Union, cited above,
§§ 39-40; Wilson, National Union of Journalists and Others, cited above,
§ 42; and Tüm Haber Sen and Çınar, cited above, § 28). The granting of a
right to strike constitutes without any doubt one of the most important of
such means (see Schmidt and Dahlström, cited above, § 36; UNISON v. the
United Kingdom (dec.), no. 53574/99, ECHR 2002‑I; and Wilson, National
Union of Journalists and Others, cited above, § 45).
57. The Court has on several occasions held that strike action is
protected by Article 11 (see National Union of Rail, Maritime and
Transport Workers v. the United Kingdom, no. 31045/10, § 84, ECHR 2014,
with further references).
58. The right to strike is not absolute and may be subject under national
law to regulation of a kind that limits or conditions its exercise in certain
instances (see Schmidt and Dahlström, cited above, § 36, and Enerji
Yapi-Yol Sen, cited above, § 32).
59. Article 11 § 2 does not exclude any occupational group from its
scope. At most, the national authorities are entitled to impose “lawful
restrictions” on certain of their employees (see Tüm Haber Sen and Çınar,
cited above, §§ 28-29; Demir and Baykara, cited above, § 107, and
Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 145, ECHR
2013 (extracts)). However, the restrictions imposed on the three groups
mentioned in Article 11 § 2 are to be construed strictly; only convincing and
compelling reasons can justify restrictions on such parties’ freedom of
association (see Tüm Haber Sen and Çınar, cited above, § 35; see also
Adefdromil v. France, no. 32191/09, § 55, 2 October 2014, and Matelly
v. France, no. 10609/10, § 71, 2 October 2014). These restrictions should
therefore be confined to the “exercise” and must not impair the very essence
of the right to organise (see Demir and Baykara, cited above, § 97).
(b) Application of these principles to the present case
(i) whether there was an interference
60. The parties did not dispute the existence of an interference with the
rights protected by Article 11 of the Convention. The Court sees no reason
to hold otherwise.
61. As noted above, the right to strike is one of the means whereby a
trade union may attempt to be heard and to bargain collectively in order to
Document No. 321
CJEC, Case C-438/05, International Transport Workers’
Federation, Finnish Seamen’s Union v. Viking Line ABP
(2007), paras 43–44
JUDGMENT OF 11. 12. 2007 — CASE C-438/05
JUDGMENT OF THE COURT (Grand Chamber)
11 December 2007 *
In Case C-438/05,
REFERENCE for a preliminary ruling under Article 234 EC from the Court of
Appeal (England and Wales) (Civil Division) (United Kingdom), made by decision of
23 November 2005, received at the Court on 6 December 2005, in the proceedings
International Transport Workers' Federation,
Finnish Seamen's Union,
v
Viking Line ABP,
OÜ Viking Line Eesti,
* Language of the case: English.
I-10806
JUDGMENT OF 11. 12. 2007 — CASE C-438/05
42 Next, according to the observations of the Danish and Swedish Governments, the
right to take collective action, including the right to strike, constitutes a fundamental
right which, as such, falls outside the scope of Article 43 EC.
43 In that regard, it must be recalled that the right to take collective action, including
the right to strike, is recognised both by various international instruments which the
Member States have signed or cooperated in, such as the European Social Charter,
signed at Turin on 18 October 1961 — to which, moreover, express reference is
made in Article 136 EC — and Convention No 87 concerning Freedom of
Association and Protection of the Right to Organise, adopted on 9 July 1948 by the
International Labour Organisation — and by instruments developed by those
Member States at Community level or in the context of the European Union, such as
the Community Charter of the Fundamental Social Rights of Workers adopted at
the meeting of the European Council held in Strasbourg on 9 December 1989, which
is also referred to in Article 136 EC, and the Charter of Fundamental Rights of the
European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1).
44 Although the right to take collective action, including the right to strike, must
therefore be recognised as a fundamental right which forms an integral part of the
general principles of Community law the observance of which the Court ensures,
the exercise of that right may none the less be subject to certain restrictions. As is
reaffirmed by Article 28 of the Charter of Fundamental Rights of the European
Union, those rights are to be protected in accordance with Community law and
national law and practices. In addition, as is apparent from paragraph 5 of this
judgment, under Finnish law the right to strike may not be relied on, in particular,
where the strike is contra bonos mores or is prohibited under national law or
Community law.
I-10826
Document No. 322
CJEC, Case C-341/05, Laval Un Partneri Ltd v. Svenska
Byggnadsarbetareförbundet (2007), paras 90–91
LAVAL UN PARTNERI
JUDGMENT OF THE COURT (Grand Chamber)
18 December 2007 *
In Case C-341/05,
REFERENCE for a preliminary ruling under Article 234 EC from the Arbetsdomstolen
(Sweden), made by decision of 15 September 2005, received at the Court on
19 September 2005, in the proceedings
Laval un Partneri Ltd
v
Svenska Byggnadsarbetareförbundet,
Svenska Byggnadsarbetareförbundets avd. 1, Byggettan,
Svenska Elektrikerförbundet,
* Language of the case: Swedish.
I - 11845
JUDGMENT OF 18. 12. 2007 — CASE C-341/05
90 In that regard, it must be recalled that the right to take collective action is
recognised both by various international instruments which the Member States have
signed or cooperated in, such as the European Social Charter, signed at Turin on
18 October 1961 — to which, moreover, express reference is made in Article 136 EC
— and Convention No 87 of the International Labour Organisation concerning
Freedom of Association and Protection of the Right to Organise of 9 July 1948 —
and by instruments developed by those Member States at Community level or in the
context of the European Union, such as the Community Charter of the Fundamental
Social Rights of Workers adopted at the meeting of the European Council held in
Strasbourg on 9 December 1989, which is also referred to in Article 136 EC, and the
Charter of Fundamental Rights of the European Union proclaimed in Nice on
7 December 2000 (OJ 2000 C 364, p. 1).
91 Although the right to take collective action must therefore be recognised as a
fundamental right which forms an integral part of the general principles of
Community law the observance of which the Court ensures, the exercise of that
right may none the less be subject to certain restrictions. As is reaffirmed by
Article 28 of the Charter of Fundamental Rights of the European Union, it is to be
protected in accordance with Community law and national law and practices.
92 Although it is true, as the Swedish Government points out, that the right to take
collective action enjoys constitutional protection in Sweden, as in other Member
States, nevertheless as is clear from paragraph 10 of this judgment, under the
Swedish constitution, that right — which, in that Member State, covers the
blockading of worksites — may be exercised unless otherwise provided by law or
agreement.
93 In that regard, the Court has already held that the protection of fundamental rights
is a legitimate interest which, in principle, justifies a restriction of the obligations
imposed by Community law, even under a fundamental freedom guaranteed by the
I - 11884
Document No. 323
IACtHR, Advisory Opinion OC-27/21, Right to freedom of
association, right to collective bargaining and right to
strike, and their relation to other rights, with a gender
perspective (2021), paras 95–105
INTER-AMERICAN COURT OF HUMAN RIGHTS
ADVISORY OPINION OC-27/21
MAY 5, 2021
REQUESTED BY THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
RIGHT TO FREEDOM OF ASSOCIATION, RIGHT TO COLLECTIVE BARGAINING AND RIGHT
TO STRIKE, AND THEIR RELATION TO OTHER RIGHTS, WITH A GENDER PERSPECTIVE
(INTERPRETATION AND SCOPE OF ARTICLES 13, 15, 16, 24, 25 Y 26, IN CONJUNCTION
WITH ARTICLES 1(1) AND 2 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS,
ARTICLES 3, 6, 7 AND 8 OF THE PROTOCOL OF SAN SALVADOR, ARTICLES 2, 3, 4, 5 AND
6 OF THE CONVENTION OF BELEM DO PARA, ARTICLES 34, 44 AND 45 OF THE CHARTER
OF THE ORGANIZATION OF AMERICAN STATES, AND ARTICLES II, IV, XIV, XXI AND XXII
OF THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN)
The Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court,”)
composed of the following judges:
Elizabeth Odio Benito, President;
L. Patricio Pazmiño Freire, Vice-President;
Eduardo Vio Grossi, Judge;
Humberto Antonio Sierra Porto, Judge;
Eduardo Ferrer Mac-Gregor Poisot, Judge;
Eugenio Raúl Zaffaroni, Judge, and
Ricardo Pérez Manrique, Judge;
also present,
Pablo Saavedra Alessandri, Registrar, and
Romina I. Sijniensky, Deputy Registrar,
pursuant to Article 64(1) of the American Convention on Human Rights (hereinafter “the American
Convention or the Convention”) and articles 70 to 75 of the Rules of Procedure of the Court
(hereinafter “the Rules of Procedure”), delivers this Advisory Opinion structured as follows:
36
agent (the most representative) and those which include all organizations or the most representative
organizations in accordance with clear pre-established criteria for the determination of the
organizations entitled to bargain are both compatible with Convention No. 98.”123
93. The Court also holds that public service workers should enjoy effective protection from all acts
of discrimination against trade unions in connection with their employment, such that the state
should give priority to collective bargaining as the means to settle disputes arising in connection with
the determination of terms and conditions of employment in the public service.124 This means that
workers and their representatives must be able to participate fully and meaningfully in negotiation
processes, and for this purpose, the state must provide workers with access to the information they
need to familiarize themselves with the material necessary to conduct negotiations. This is
particularly critical in wage negotiations, as in the context of economic stabilization, the states should
give priority to collective bargaining as a means of determining the employment conditions of public
servants, rather than adopting legislation to restrain wages in the public sector.125 The Court also
deems that no action is permissible if it entails requiring workers to belong to any particular
organization of public service workers in order to keep their jobs, or firing them for taking part in
union activities.
94. In view of all this, the Court would add as a corollary that the right to collective bargaining,
an essential part of the freedom to organize, consists of various components, including at least the
following: (a) the principle of freedom from discrimination for workers who are involved in union
activities, as the guarantee of equality is a prior condition for negotiations between employers and
workers; (b) freedom from direct or indirect interference by employers during the creation, operation
and administration of workers’ labor unions, as this could produce an imbalance in negotiations that
would undermine the workers’ objective of improving their living and working conditions through
collective bargaining or other lawful means; and (c) progressively encouraging processes of voluntary
negotiation between employers and workers aimed at improving working conditions through
collective bargaining agreements.
D. The right to strike
95. The right to strike is one of the fundamental human rights of workers, and they can avail
themselves of it even outside of their organizations. This is stated in Articles 45(c) of the OAS Charter
(workers’ right to strike) and 27 of the Inter-American Charter of Social Guarantees (workers have
the right to strike); it is also stated, and deliberately placed separately from the rights of union
organizations, in Articles 8(b) of the Protocol of San Salvador and 8(1)(d) of the ICESCR126 (supra,
par. 47 and 48, and 56 to 60). Otherwise, the negative dimension of freedom of association in the
individual sense could be breached. It is also one of the leading rights of union organizations in
general.
123 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 1360. Cf. Committee on
Freedom of Association, 368th report, case number 2919, paragraph 651.
124 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 1241. Cf. Committee on
Freedom of Association, 343rd report, case number 2430, paragraph 361, and case number 2292, paragraph 794; 344th
report, case number 2364, paragraph 91; 376th report, case number 3042, paragraph 560; 377th report, case number 3118,
paragraph 177; and 378th report, case number 3135, paragraph 418.
125 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 1492. Cf. Committee on
Freedom of Association, 368th report, case number 2918, paragraph 362.
126 The placement of a provision can be a factor of considerable importance for interpretation purposes. Cf. Enforceability
of the Right to Reply or Correction (Arts. 14(1), 1(1) and 2 American Convention on Human Rights). Advisory Opinion OC-
7/86 of August 29, 1986. Series A No. 7, par. 25, and Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13,
1985. Series A No. 5, par. 47.
37
96. The Court cautions that, although the right to strike is not expressly recognized in the ILO
conventions, nonetheless, Article 3 of Convention 87 does recognize the right of worker organizations
“in full freedom, to organise their administration and activities and to formulate their programmes”
(supra par. 63). The Committee on Freedom of Association has accordingly recognized the
importance of the right to strike as “an intrinsic corollary to the right to organize protected by
Convention No. 87.”127 In both cases, the strike is a legitimate means for defending economic, social
and occupational interests. It is a resource that workers use to apply pressure on their employers for
correcting an injustice or for seeking solutions to economic and social policy questions and problems
facing the undertaking which are of direct concern to the workers.
97. The Court also notes that, in addition to being broadly recognized in international corpus juris,
the right to strike has also been recognized in the national constitutions and laws of OAS member
states.128 It can thus be considered a general principle of international law.
98. The Committee on Freedom of Association, in general terms, understands a strike as “a
temporary work stoppage (or slowdown) willfully effected by one or more groups of workers with a
view to enforcing or resisting demands or expressing grievances, or supporting other workers in their
demands or grievances.”129 The Court concurs with this definition and deems the right to strike to be
one of the fundamental rights of workers and their organizations, as it is a legitimate means to
defend their economic, social and occupational interests. It is a resource that workers use as a means
to apply pressure on their employers for correcting an injustice or for seeking solutions to economic
and social policy questions and problems facing the undertaking which are of direct concern to the
workers.130 The European Court has ranked strikes as the “most powerful” instrument to protect
labor rights.131
99. This Court holds that there are three categories of purposes or demands that can be expressed
through strike and that are subject to protection: labor issues intended to improve working or living
conditions for workers; trade union issues putting forward the collective demands of union
organizations; and strikes seeking to challenge public policies.132
127 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 754. Cf. Committee on Freedom
of Association, 344th report, case number 2471, paragraph 891; 346th report, case number 2506, paragraph 1076, case
number 2473, paragraph 1532; 349th report, case number 2552, paragraph 419; 354th report, case number 2581, paragraph
1114; and 362nd report, case number 2838, paragraph 1077.
128 Cf. Constitución de la Nación Argentina, Article 14 bis; Constitución Política del Estado Plurinacional de Bolivia, Article
53; Constitución Política de Brasil, Article 9; Constitución Política de la República de Chile, Article 16; Constitución Política de
Colombia, Article 56; Constitución Política de la República de Costa Rica, Article 61; Constitución de la República de Ecuador,
Article 35.10; Constitución Política de El Salvador, Article 48; Constitución Política de Guatemala, Article 104; Constitución de
la República de Honduras, Article 128; Constitución Política de los Estados Unidos Mexicanos, Article 123 A XVIII; Constitución
Política de la República de Nicaragua, Article 83, Constitución Política de Panamá, Article 69; Constitución de la República del
Paraguay, Article 98; Constitución Política de Perú, Article 28; Constitución Política de la República Dominicana, Article 62.6,
and Constitución de la República Oriental del Uruguay, Article 57, Canadian Charter of Rights and Freedoms, assented to in
1982, Article 2(b), and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245, par.3.
129 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 783; Cf. Committee on Freedom
of Association, 358th report, case number 2716, paragraph 862.
130 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 758; Cf. Committee on Freedom
of Association, 344th report, case number 2496, paragraph 407; 353rd report, case number 2619, paragraph 573; 355th
report, case number 2602, paragraph 668; 357th report, case number 2698, paragraph 224; 371st report, case number
2963, paragraph 236, case number 2988, paragraph 852; and 378th report, case number 3111, paragraph 712.
131 ECtHR, Hrvatski Liječnički sindikat v. Croatia, No. 36701/09, judgment of November 27, 2014, par. 59.
132 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 758 and 763. Cf. Committee
on Freedom of Association, 344th report, case number 2509, paragraph 1247; 348th report, case number 2530, paragraph
1190; 351st report, case number 2616, paragraph 1012; 353rd report, case number 2619, paragraph 573; 355th report,
38
100. The Court also upholds the standard of legality as a key factor to determine whether the right
to strike can be exercised. The Court deems, in this sense, that the states should adopt measures of
domestic law as necessary to bring their legislation into line with the content of this right. In doing
so, the states should consider that, even allowing for certain exceptions under international law, the
legislation should protect the exercise of the right to strike for all workers. Thus, the preconditions
and prior requirements allowed by law for a strike to be considered legal should not be so complicated
as to render a legal strike impossible in practice. The obligation to give the employer advance notice
before calling a strike is admissible, so long as the notice is reasonable.133 The same is not true of
the requirement to set a limit on the duration of a strike which, due to its nature as a last resort for
the defense of workers’ interests, cannot be predetermined.134
101. The Court also emphasizes that the power to declare a strike illegal should not lie with an
administrative body; instead, it pertains to the judicial authority to make the determination, applying
mandatory grounds stipulated in advance by the law, in keeping with the rights to judicial guarantees
called for in Article 8 of the American Convention.135 The Court also holds that the state must refrain
from applying sanctions to workers who take part in a legal strike, which is a legitimate union activity
and the exercise of a human right, and it must guarantee that no such sanctions be applied by private
companies.
102. The Court deems, furthermore, that the exercise of the right to strike can be restricted or
prohibited only in the case of: (a) public servants who serve as arms of public power and exercise
authority on behalf of the state, and (b) workers in essential services.136
103. Workers who provide essential services should be so defined according to the strict sense of
the term, that is, providing services whose interruption entails a clear and imminent threat to the
life, safety, health or freedom of the whole or part of the population (for example, workers in the
hospital sector, electricity services, or water supply services).137 The Court also upholds the need for
appropriate compensatory guarantees to be in place for those services considered essential and for
case number 2602, paragraph 668; 360th report, case number 2747, paragraph 841; and 372nd report, case number 3011,
paragraph 646.
133 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 799; Cf. Committee on Freedom
of Association, 340th report, case number 2415, paragraph 1257; 344th report, case number 2509, paragraph 1246; 346th
report, case number 2473, paragraph 1542; and 376th report, case number 2994, paragraph 1002.
134 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 815. Cf. Committee on Freedom
of Association, 376th report, case number 2994, par. 1002.
135 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 910. Cf. Committee on Freedom
of Association, 343rd report, case number 2355, paragraph 471; 348th report, case number 2355, paragraph 309, and case
number 2356, paragraph 368.
136 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 830. Cf. Committee on Freedom
of Association, 340th report, case number 1865, paragraph 751; 344th report, case number 2467, paragraph 578; 346th
report, case number 2500, paragraph 324; 348th report, case number 2433, paragraph 48, case number 2519, paragraph
1141; 349th report, case number 2552, paragraph 421; 351st report, case number 2355, paragraph 361, case number 2581,
paragraph 1336; 353rd report, case number 2631, paragraph 1357; 354th report, case number 2649, paragraph 395; 356th
report, case number 2654, paragraph 370; 357th report, case number 2698, paragraph 224; 362nd report, case number
2741, paragraph 767, case number 2723, paragraph 842; 365th report, case number 2723, paragraph 778; 367th report,
case number 2894, paragraph 335, case number 2885, paragraph 384, case number 2929, paragraph 637, case number
2860, paragraph 1182; 370th report, case number 2956, paragraph 142; 371st report, case number 3001, paragraph 211,
case number 2988, paragraph 851; 372nd report, case number 3022, paragraph 614; 374th report, case number 3057,
paragraph 213; 377th report, case number 3107, paragraph 240; and 378th report, case number 3111, paragraph 715.
137 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 836 and 840. Cf. Committee
on Freedom of Association, 343rd report, case number 2355, paragraph 469; 346th report, case number case number 2488,
paragraph 1328; 348th report, case number 2519, paragraph 1141; 349th report, case number 2552, paragraph 421; and
364th report, case number 2907, paragraph 670.
39
public services, as the restriction on the right to strike must be accompanied by adequate, impartial
and speedy conciliation and arbitration proceedings in which the parties concerned can take part at
every stage and in which the awards, once made, are fully and promptly implemented.138
104. Also with regard to essential services, the Court would stress that the states must seek
possible alternatives for cases where a minimum service could be an appropriate solution to avoid
total prohibition of the strike while still guaranteeing users’ basic needs or the safe operation of
facilities providing a service considered “essential.”139 It would emphasize that such minimum
services should be limited to operations necessary to meet the population’s basic needs or minimum
service requirements, with the guarantee that the scope of minimum services not be so expansive
as to render the strike impossible. Negotiations on minimum services must take place before a labor
conflict arises, so that all stakeholders (public authorities, worker organizations, and employer
organizations) can remain as objective and clear-headed as possible.
105. Finally, this Court finds it allowable for states to set forth certain prior conditions that need to
be met, as defined through the process of collective bargaining, before a decision is made to activate
the mechanism of a strike to defend workers. Such conditions, however, should be reasonable and
in no event should undercut the essential content of the right to strike or the autonomy of trade
union organizations.140
E. On the specific questions raised by the Inter-American Commission
106. This Court reiterates that freedom of association, collective bargaining, and the right to strike
are rights incorporated into Article 26 of the Convention, as they derive from Article 45,
subparagraphs (c) and (g) of the OAS Charter (supra, par. 48). Although each one is a right on its
own merits, this Court would stress that they are interdependent and indivisible.141 As such, they are
subject to the general obligations established in Articles 1(1) and 2 of the Convention, which set
forth duties to respect and guarantee the rights recognized therein without discrimination, and to
adopt measures under domestic law to give effect to those rights and freedoms.
107. The Court has repeatedly held, since its earliest judgments, that the first obligation assumed
by the states parties under Article 1(1) is “to respect the rights and freedoms” recognized by the
Convention. The exercise of public authority has certain limits which derive from the fact that human
rights are inherent attributes of human dignity and are, therefore, superior to the power of the state.
The protection of human rights, particularly the civil and political rights set forth in the Convention,
138 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 856. Cf. Committee on Freedom
of Association, 340th report, case number 2415, paragraph 1256; 344th report, case number 2484, paragraph 1095; 349th
report, case number 2552, paragraph 421; 350th report, case number 2543, paragraph 726; 353rd report, case number
2631, paragraph 1357; 356th report, case number 2654, paragraph 376; 359th report, case number 2383, paragraph 182;
367th report, case number 2885, paragraph 384, case number 2929, paragraph 637; 370th report, case number 2956,
paragraph 142; and 371st report, case number 2203, paragraph 534.
139 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 867. Cf. Committee on Freedom
of Association, 344th report, case number 2461, paragraph 313, case number 2484, paragraph 1094; 348th report, case
number 2433, paragraph 48; 349th report, case number 2545, paragraph 1153; 350th report, case number 2543, paragraph
727; 354th report, case number 2581, paragraph 1114; 356th report, case number 2654, paragraph 371; 362nd report, case
number 2741, paragraph 768, case number 2841, paragraph 1041; 371st report, case number 2988, paragraph 851; 372nd
report, case number 3022, paragraph 614; and 377th report, case number 3107, paragraph 240.
140 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, par. 789-790. Cf. Committee on
Freedom of Association, 343rd report, case number 2432, paragraph 1026; 346th report, case number 2488, paragraph 1331;
357th report, case number 2698, paragraph 225; 359th report, case number 2203, paragraph 524; 371st report, case number
2988, paragraph 850; and 375th report, case number 2871, paragraph 231.
141 Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller”) v. Peru.
Preliminary Objection, Merits, Reparations and Costs. Judgment of July 1, 2009 Series C No. 198, par. 101, and Case of Lagos
del Campo v. Peru, supra, par. 141.
Document No. 324
IACtHR, Case of the Former Employees of the Judiciary v.
Guatemala (2021), paras 106–127
49
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF THE FORMER EMPLOYEES OF THE JUDICIARY V. GUATEMALA
JUDGMENT OF NOVEMBER 17, 2021
(Preliminary Objections, Merits and Reparations)
In the case of the Former Employees of the Judiciary v. Guatemala,
the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the
Court”), composed of the following judges:
Elizabeth Odio Benito, President
Patricio Pazmiño Freire, Vice President
Eduardo Vio Grossi, Judge
Humberto Antonio Sierra Porto, Judge
Eduardo Ferrer Mac-Gregor Poisot, Judge
Eugenio Raúl Zaffaroni, Judge
Ricardo Pérez Manrique, Judge
also present,
Pablo Saavedra Alessandri, Registrar
Romina I. Sijniensky, Deputy Registrar,
pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter
“the American Convention” or “the Convention”) and with Articles 31, 32, 42, 65 and 67 of
the Rules of Procedure of the Court (hereinafter “the Rules of Procedure” or the “Rules”),
delivers this judgment, structured as follows:
31
104. The Court also finds it pertinent to recall that there are two types of obligations derived from
the recognition of ESCER, which are protected by Article 26 of the Convention: those that are
immediately enforceable and those of a progressive nature. In relation to the former (immediately
enforceable obligations), the Court recalls that the States must adopt effective measures to ensure
access, without discrimination, to the benefits recognized by the ESCER, and in general to advance
toward their full realization. With regard to the latter (obligations of a progressive nature),
progressive realization means that the States Parties have the specific and constant obligation to
advance as rapidly and efficiently as possible toward the full realization of those rights, subject to
available resources, through legislation or other appropriate means. There is also an obligation of
non-retrogression with respect to the realization of the rights achieved. Thus, the conventional
obligations of respect and guarantee, as well as the adoption of measures of domestic law (Articles
1(1) and 2), are essential to achieve their effectiveness.109
105. In consideration of the foregoing, this case does not require an analysis of State conduct
related to the progressive development of the ESCER; rather, the Court must determine whether
the State guaranteed the protection of such rights to the 65 former employees who were
dismissed from the Judiciary as a result of the strike. In other words, the Court must determine
whether the State fulfilled its immediately enforceable obligations with respect to the right to work
and the right to strike. It is therefore incumbent upon this Court to rule on the State’s conduct
with respect to compliance with its obligations to guarantee the right to strike and the right to
work and to job security.
B.2. The right to strike, in relation to the right to freedom of association and
freedom to organize
106. In its advisory role, this Court has already established that the right to strike is one of the
fundamental human rights of workers, which may be exercised independently of their
organizations.110 This is specified in Article 45(c) of the OAS Charter (right to strike “by the
workers”), and is indicated by the deliberate placement of its wording separately from the rights
of trade union associations, in Articles 8(b) of the Protocol of San Salvador and 8(1)(d) of the
ICESCR.111 It is also enshrined in Article 27 of the Inter-American Charter of Social Guarantees
(“workers have the right to strike”). Otherwise, the negative dimension of freedom of association
in its individual aspect could be impaired. It is also a right of trade associations in general.
107. The Court notes that although the right to strike is not expressly recognized in the ILO
Conventions, it is significant that Article 3 of Convention 87 on Freedom of Association
and Protection of the Right to Organize, to which Guatemala is a party, recognizes the right of
workers’ organizations to “organize […] their activities in full freedom and to formulate their
program of action.” In that regard, the Committee on Freedom of Association has recognized the
importance of the right to strike as “an intrinsic corollary to the right to organize protected by
Convention No. 87.”112
109 Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 190, and Case of the Miskito Divers (Lemoth Morris et al.) v. Honduras, supra, para.
66.
110 Cf. Rights to Freedom to Organize, Collective Bargaining, and Strike, and their Relation to other Rights, with
a Gender Perspective. Advisory Opinion OC-27/21 of May 5, 2021. Series A No. 27, para. 95.
111 The positioning of a provision may be a factor of great importance for its interpretation. Cf. Enforceability of
the Right to Reply. Advisory Opinion OC-5/85 7/86 of August 29, 1986. Series A No. 5, para. 47, and Advisory Opinion
OC-27/21, supra, para. 95.
112 Cf. Compilation of decisions of the Committee on Freedom of Association, Sixth Edition, 2018, para. 754. Cf.
Committee on Freedom of Association, Report 344, Case No. 2471, paragraph 891; Report 346, Case No. 2506,
32
108. The Court also notes that, in addition to being widely recognized in the international corpus
iuris, the right to strike has also been recognized in the constitutions and legislation of the OAS
Member States.113 In this sense, it can be considered as a general principle of international law.
In particular, the Constitution of Guatemala states:
Article 104. Right to strike and work stoppage. The right to strike is recognized and is to be
exercised in accordance with the law, after all conciliation procedures have been exhausted.
These rights may be exercised only for reasons of an economic or social order. The laws
shall establish the cases and situations in which a strike or work stoppage shall not be
allowed.114
109. According to the Committee on Freedom of Association, a strike is generally defined as “a
temporary work stoppage (or slowdown) willfully effected by one or more groups of workers with
a view to enforcing or resisting demands or expressing grievances, or supporting other workers
in their demands or grievances.”115 The Court agrees with this definition, and considers that the
right to strike is one of the fundamental rights of workers and their organizations, as it constitutes
a legitimate means of defending their economic, social and professional interests. It is a measure
exercised by workers as a means of exerting pressure on the employer in order to correct an
injustice or to seek solutions to economic and social policy issues and problems arising in
companies that are of direct interest to workers.116 In this regard, the European Court has
described the strike as the “most powerful” instrument for the protection of labor rights.117
110. The Inter-American Court has already mentioned the close links existing between freedom
of association, freedom to organize and the right to strike. In this sense, the Court has emphasized
that the relationship between freedom of association and freedom to organize is akin to one of
genus and species, since the former recognizes the right of individuals to create organizations and
act collectively in pursuit of legitimate goals, based on Article 16 of the American Convention,
while the latter should be understood in relation to the specificity of the activity and the importance
of the objective pursued by union activities, as well as its specific protection derived from Article
26 of the Convention and Article 8 of the Protocol of San Salvador. Similarly, it has indicated that
the protection of the rights to collective bargaining and to strike, as essential tools of the rights of
association and freedom to organize, is fundamental.118
paragraph 1076, Case No. 2473, paragraph 1532; Report 349, Case No. 2552, paragraph 419; Report 354, Case No.
2581, paragraph 1114; and Report 362, Case No. 2838, paragraph 1077.
113 Cf. Constitution of the Argentine Nation, Article 14 bis; Constitution of the Plurinational State of Bolivia, Article
53; Constitution of Brazil, Article 9; Constitution of the Republic of Chile, Article 16; Constitution of Colombia, Article
56; Constitution of the Republic of Costa Rica, Article 61; Constitution of the Republic of Ecuador, Article 35.10;
Constitution of El Salvador, Article 48; Constitution of Guatemala, Article 104; Constitution of the Republic of
Honduras, Article 128; Constitution of the United Mexican States, Article 123 A XVIII; Constitution of the Republic of
Nicaragua, Article 83, Constitution of Panama, Article 69; Constitution of the Republic of Paraguay, Article 98;
Constitution of Peru, Article 28; Constitution of the Dominican Republic, Article 62(6), and Constitution of the Oriental
Republic of Uruguay, Article 57, Canadian Charter of Rights and Freedoms, signed in 1982, Article 2.b.
114 Constitution of the Republic of Guatemala of May 31, 1985. Text available at:
https://www.congreso.gob.gt/assets/uploads/congreso/marco_legal/ab811-cprg.pdf.
115 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, para. 783; Cf. Committee on
Freedom of Association, Report 358, Case No. 2716, paragraph 862.
116 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, para. 758; Cf. Committee on
Freedom of Association Report 344, Case No. 2496, paragraph 407; Report 353, Case No. 2619, paragraph 573;
Report 355, Case No. 2602, paragraph 668; Report 357, Case No. 2698, paragraph 224; Report 371, Case No. 2963,
paragraph 236, Case No. 2988, paragraph 852; and Report 378, Case No. 3111, paragraph 712.
117 ECHR, , No. 36701/09. Judgment of November 27, 2014, para. 59.
118 Cf. Advisory Opinion OC-27/21, supra, para. 121.
33
111. With respect to freedom of association, Article 16(1) of the American Convention recognizes
the right of persons to associate freely for ideological, religious, political, economic, labor, cultural,
sporting or any other purpose. This Court has pointed out that the right of association enables
individuals to create or participate in entities or organizations for the purpose of acting collectively
in pursuit of the most diverse objectives, as long as these are legitimate.119 The Court has
established that those under the jurisdiction of the States Parties have the right to associate freely
with other persons, without any intervention by the public authorities that could limit or impair
the exercise of the respective right. This matter, therefore, is about the basic right to constitute a
group for the pursuit of a lawful goal, without pressure or interference that may alter or denature
its objective.120 The Court has likewise noted that freedom of association also gives rise to positive
obligations to prevent attacks on it, to protect those who exercise it and to investigate violations
of that freedom; this requires the adoption of positive measures, even in the sphere of relations
between individuals, should the case merit it.121
112. In labor matters, this Court has established that freedom of association protects the right
to form trade union organizations and to implement their internal structure, activities and action
programs, without intervention by the public authorities that would limit or hinder the exercise of
the respective right.122 At the same time, this freedom presupposes that each person may
determine, without coercion, whether he or she wishes to join the association.123 In addition, the
State has the duty to ensure that individuals can freely exercise their freedom of association
without fear that they will be subjected to violence of any kind; otherwise, the ability of groups to
organize for the protection of their interests could be diminished.124 In this regard, the Court has
emphasized that freedom of association in labor matters “is not exhausted with the theoretical
recognition of the right to form [trade unions], but also corresponds, inseparably, to the right to
use any appropriate means to exercise this freedom.”125
113. With regard to the right to freedom of association, Article 45(c) and (g) of the OAS Charter
expressly states that employers and workers may associate freely for the defense and promotion
of their interests, including the right of workers to collective bargaining and to strike. Likewise,
Article XXII of the American Declaration recognizes the right of every person “to associate with
others to promote, exercise and protect his legitimate interests of a political, economic, religious,
social, cultural, professional, labor union or other nature.”
114. Thus, the Court has established that the protection of freedom of association fulfills an
important social function, since the work of trade unions makes it possible to safeguard or improve
the working and living conditions of workers, and to that extent its protection enables the
realization of other human rights. In this sense, the protection of the right to collective bargaining
119 Cf. Case of Escher et al. v. Brazil. Preliminary objections, merits, reparations and costs. Judgment of July 6,
2009. Series C No. 200, para. 169 and Advisory Opinion OC-27/2, supra, para. 121.
120 Cf. Case of Baena Ricardo et al. v. Panama, supra, para. 156 and Advisory Opinion OC-27/21, supra, para.
121.
121 Cf. Case of Huilca Tecse v. Peru. Merits, reparations and costs. Judgment of March 3, 2005. Series C No.
121, para. 76, and Advisory Opinion OC-27/21, supra, para. 121.
122 Cf. Case of Baena Ricardo et al. v. Panama, supra, para. 156 and Advisory Opinion OC-27/21, supra, para.
71.
123 Cf. Case of Baena Ricardo et al. v. Panama, supra, para. 158, and Advisory Opinion OC-27/21, supra, para.
71.
124 Cf. Case of Huilca Tecse v. Peru, supra, para. 77, and Advisory Opinion OC-27/21, supra, para. 71.
125 Cf. Case of Huilca Tecse v. Peru, supra, para. 70, and Advisory Opinion OC-27/21, supra, para. 71.
34
and strike, as essential tools of the rights of association and freedom to organize, is
fundamental.126
115. In relation to the foregoing, this Court finds that the sphere of protection of the right to
freedom of association in labor matters is not only subsumed to the protection of trade unions,
their members and their representatives. Trade unions and their representatives enjoy specific
protection for the effective performance of their functions, since, as this Court has established in
its jurisprudence,127 and as stated in various international instruments, 128 including Article 8 of
the Protocol of San Salvador, in trade union matters, freedom of association is of the utmost
importance for the defense of the legitimate interests of workers, and is part of the corpus juris
of human rights.129
116. In the instant case, given the failure of direct negotiations to reach a new collective
agreement on working conditions, the STOJ initiated an economic-social dispute before the First
Chamber of Appeals of Labor and Social Welfare. The conciliation procedure established in the
Labor Code was followed, but concluded on February 15, 1996, without the parties reaching an
agreement. Given this impasse in the negotiations, the STOJ filed a brief before the First Chamber
of the Court of Appeals requesting that the General Labor Inspectorate be ordered to proceed with
the count to determine whether the requirements to hold a legal strike under the Labor Code were
met.
117. Indeed, according to Article 241 of the Labor Code in force at the time of the facts, in order
to declare a strike lawful, the workers must “constitute at least two-thirds of the persons working
in the respective company or production center, who have initiated their labor relationship prior
to the collective economic or social dispute.” Moreover, pursuant to Article 4 of the Law of
Unionization and Strike Regulations for State Employees, in its version in force at the time of the
facts, for State workers to exercise the right to strike, the law established the prior requirement
of having exhausted the direct procedure and subparagraph c) stated that “No strike may be
carried out when it is intended to affect the essential services referred to in Article 243 of the
Labor Code, Decree 1441 of the Congress of the Republic and others established by law, as well
as those ordered by the Executive in compliance of the Public Order Law.”130
118. In its advisory role, this Court has already pointed out that the criterion of legality of the
strike is a central element with respect to the possibility of exercising the right to strike. Thus, the
prior terms and conditions established by law for a strike to be considered lawful should not be
complicated to the point of making it impossible, in practice, to hold a legal strike. On the other
hand, this Court considers it possible for States to establish compliance with certain preconditions
within the framework of collective bargaining before resorting to the strike mechanism in defense
126 Cf. Advisory Opinion OC-27/21, supra, para. 124.
127 Cf. Case Baena Ricardo et al. v. Panama, supra, para. 156, and Advisory Opinion OC-27/21, supra, para. 72.
128 Cf. ILO. Convention No. 87 Freedom of Association and Protection of the Right to Organize, June 17, 1948 and
Convention No. 98 Right to Organize and Collective Bargaining, of June 8, 1949.
129 Cf. Case of Baena Ricardo et al. v. Panama, supra, para. 158, and Advisory Opinion OC-27/21, supra, para.
72.
130 Article 243 of the Labor Code established as essential services: “The following workers may not go on strike:
a) workers of transportation companies, while they are on a journey and have not completed it. b) workers in clinics,
hospitals, hygiene and public cleaning services; and those who work in companies that provide power, lighting,
telecommunications and water processing and distribution services for the population, unless the necessary personnel
is provided to avoid the suspension of such services, without causing grave and immediate harm to health, safety
and public economy; c) the State’s security forces […]”.
35
of workers. However, these conditions must be reasonable and must not affect, in any way, the
essential content of the right to strike or the autonomy of trade union organizations.131
119. In this case, the requirements for the legality of a strike by State workers were: 1) the
exhaustion of direct negotiations; 2) that the strike be held for demands of an economic or social
nature; 3) that it not affect essential services and 4) compliance with the legal requirements, in
this case, with the provisions of Article 241 of the Labor Code in force at the time, which implied
a minimum participation of at least two-thirds of the workers in the strike. The STOJ complied
with the first requirements and, in order to comply with the provisions of the Labor Code, on
February 16, 1996, it asked the competent judicial authority to order the General Labor
Inspectorate to carry out the count. This request was granted. Despite the fact that the authorities
rejected the various appeals attempted by the State against the decision to order the count (supra
para. 41), it was never carried out. In fact, the Inspector General's Office consulted the First
Chamber to determine whether the count should proceed, but on February 26, 1996, the First
Chamber ordered the suspension of the count until the challenges were resolved.132 In view of
the material impossibility of complying with the legal requirements, the STOJ held a de facto strike
from March 19 to April 2, 1996.
120. Thus, in the instant case, the declaration of illegality was linked to the fact that the STOJ
did not comply with this requirement because the General Labor Inspectorate was unable to carry
out the count. However, the count was not carried out for reasons beyond the Union’s control. It
should be noted that, in this case, both the employer and the authorities in charge of implementing
and verifying compliance with the requirements form part of the State. Although the Stateemployer
had the right to oppose the decision to carry out the count of the strike participants
ordered by the First Chamber and executed by the General Labor Inspectorate, it should be noted
that, once the final decision rejecting these appeals was issued, the count was not carried out and
the case moved directly to the consideration of the motion of illegality filed by the State-employer
itself to have the strike declared illegal. Between the two decisions - the final decision on the count
and the filing of the motion for the declaration of illegality - more than twenty days passed, during
which time the count could have been carried out.
121. With regard to the excessive complexity and lengthy delays in the prior procedures required
to exercise the right to strike, the ILO’s oversight bodies have stressed that the legal mechanisms
for declaring a strike should not be so complex or cause such long delays that, in practice, it
becomes impossible to carry out a lawful strike or that the action loses all its effectiveness.
Similarly, the Committee on Economic, Social and Cultural Rights has brought to the attention of
the States that the lengthy procedure required to declare a strike legal may constitute a restriction
of the right recognized in Article 8(1) of the International Covenant on Economic, Social and
Cultural Rights.133
122. Given that more than two years had passed between the start of the dispute in 1994 and
the strike action, during which time all attempts at direct negotiation with the State-employer
failed,134 it may be concluded that the only tool left to the workers was the strike, as a last resort.
131 Cf. Compilation of decisions of the Committee on Freedom of Association, supra, para. 789-790. Cf. Committee
on Freedom of Association, Report 343, Case No. 2432, paragraph 1026; Report 346, Case No. 2488, paragraph
1331; Report 357, Case No. 2698, paragraph 225; Report 359, Case No. 2203, paragraph 524; Report 371, Case No.
2988, paragraph 850; and Report 375, Case No. 2871, paragraph 231.
132 Cf. Ruling of the First Chamber of the Labor and Social Welfare Appeals Court in the context of Collective
Dispute No. 730-94 of February 26, 1996 (evidence file, folios 41 and 41).
133 CESCR. Compilation of final observations of the Committee on Economic, Social and Cultural Rights on
countries of Latin America and the Caribbean (1989-2004).
134 In the results of the verification of the complaint filed by the STOJ, MINUGUA considered that “successive legal
challenges and motions filed by the Attorney General’s Office and the Supreme Court of Justice prevent, in fact, the
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Therefore, the numerous appeals filed by the State against the decision authorizing the count by
the General Labor Inspectorate, and its lack of diligence in implementing that decision, constituted
an arbitrary obstruction by the State of the exercise of the right to strike by the former workers
of the Judiciary.
123. With respect to the violation of freedom of association and freedom to organize, this Court
notes that neither the Commission nor the representative expressly alleged the violation of these
rights in this case. However, under the iura novit curia principle,135 and given the close relationship
that exists between the aforementioned rights (see supra paras. 110 to 115) the Court will rule
on these violations in connection with the right to strike.
124. Indeed, in the instant case, the Court finds that a significant number of the alleged victims
were Judiciary workers who, in the exercise of their rights to freedom of association and freedom
to organize, had joined the STOJ.136 Between March 19 and April 2, 1996, members of the STOJ
went on strike, which was declared illegal and as a result of this declaration, the 65 alleged victims
were dismissed, including some who were union leaders and who, therefore, enjoyed union
privilege (immunity from dismissal) established in Article 223 of the Labor Code. This Court has
already stated that trade unions and their representatives enjoy specific protection for the
effective performance of their functions, since freedom of association in trade union matters is of
the utmost importance for the defense of the legitimate interests of workers and is part of the
corpus juris of human rights.137 Therefore, the Court concludes that the declaration of illegality of
the strike not only violated the right to strike but also the right to freedom of association and
freedom to organize of the 65 alleged victims in this case.
125. Finally, in view of the requirement established by Guatemalan legislation at the time of the
facts that a count had to be carried out and that this must reflect the participation of at least twothirds
of the workers, the Court deems it appropriate to analyze whether these preconditions for
opting for the strike mechanism are reasonable and do not affect the essential content of the right
to strike, freedom of association and freedom to organize. In this regard, the ILO Committee on
Freedom of Association has already commented on the impact of this requirement on the right to
strike and on union activities:
“With regard to the majority vote required by one law for the calling of a legal strike (two-thirds of the
total number of members of the union or branch concerned), non-compliance with which might entail
a penalty by the administrative authorities, including the dissolution of the union, the Committee recalls
the conclusions of the Committee of Experts (…) that such legal provisions constitute an intervention
by the public authorities in the activities of trade unions which is of such a nature as to restrict the
rights of these organizations, contrary to Article 3 of the Convention (Convention 87).”138
126. Indeed, the requirement of such a high rate of participation in the action makes a legal
strike impossible in practice, so that its imposition implies an arbitrary restriction of the right to
strike, of freedom of association and of freedom to organize.
collective bargaining from materializing or delayed the procedure required to implement it.” (Letter from MINUGUA
to Víctor Hugo Godoy, president of COPRODEH of March 15, 2000, evidence file folio 625).
135 Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 163
and Case of González et al. v. Venezuela. Merits and reparations. Judgment of September 20, 2021. Series C No.
436, para. 144.
136 According to the information provided by the Commission, 51 of the 65 alleged victims were members of the
STOJ. Five expressly stated that they were not members and there is no information with respect to nine of them.
137 Case of Baena Ricardo et al. v. Panama, supra, para. 158, and Advisory Opinion OC-27/21, supra, para. 72.
138 ILO. Compilation of decisions of the Committee on Freedom of Association, supra, para. 805.
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127. Consequently, the Court considers that the Guatemalan State is responsible for the violation
of the right to strike, freedom of association and freedom to organize recognized in Articles 16
and 26 of the American Convention, in relation to Articles 1(1) and 2 of the same instrument, to
the detriment of the 65 former employees of the Judiciary listed in the Single Annex.
B.2. The right to work and to job security
128. With regard to the specific labor rights protected by Article 26 of the American Convention,
the Court has already determined that the wording of said article indicates that these rights are
derived from the economic, social, educational, scientific and cultural standards contained in the
OAS Charter.139 In this sense, Articles 45(b) and (c),140 46,141 and 34(g)142 of the Charter
establish that “[w]ork is a right and a social duty” and that this should be performed with “fair
wages, employment opportunities, and acceptable working conditions for all.” These articles also
establish the right of workers to “associate themselves freely for the defense and promotion of
their interests.” They also require the State to “harmonize the social legislation” for the protection
of such rights. In its Advisory Opinion OC-10/89, the Court indicated that:
[…] The Member States […] have signaled their agreement that the Declaration contains and defines the
fundamental human rights referred to in the Charter. Thus, the Charter of the Organization cannot be
interpreted and applied, as far as human rights are concerned, without relating its norms, consistent with
the practice of the organs of the OAS, to the corresponding provisions of the Declaration.143
129. In this regard, Article XIV of the American Declaration establishes that “[e]very person has
the right to work, under proper conditions, and to follow his vocation freely.” This provision is
relevant in defining the scope of Article 26, given that “the American Declaration constitutes,
where applicable and in relation to the OAS Charter, a source of international obligations.”144
Furthermore, Article 29(d) of the American Convention expressly establishes that “[n]o provision
of this Convention may be interpreted as: […] d) excluding or limiting the effect that the American
Declaration of the Rights and Duties of Man and other international acts of the same nature have.”
130. The Committee on Economic, Social and Cultural Rights, in General Comment No. 18 on the
right to work, has stated that this right “also implies the right not to be unfairly deprived of
139 Cf. Case of Lagos del Campo v. Peru, supra, para. 143, and Case of Vera Rojas et al. v. Chile, supra, para. 33.
140 Article 45 of the OAS Charter. - The Member States, convinced that man can only achieve the full realization of
his aspirations within a just social order, along with economic development and true peace, agree to dedicate every
effort to the application of the following principles and mechanisms: […] b) Work is a right and a social duty, it gives
dignity to the one who performs it, and it should be performed under conditions, including a system of fair wages, that
ensure life, health, and a decent standard of living for the worker and his family, both during his working years and in
his old age, or when any circumstance deprives him of the possibility of working; c) Employers and workers, both rural
and urban, have the right to associate themselves freely for the defense and promotion of their interests, including the
right to collective bargaining and the workers' right to strike, and recognition of the juridical personality of associations
and the protection of their freedom and independence, all in accordance with applicable laws […].
141 Article 46 of the OAS Charter. - The Member States recognize that, in order to facilitate the process of Latin
American regional integration, it is necessary to harmonize the social legislation of the developing countries, especially
in the labor and social security fields, so that the rights of the workers shall be equally protected, and they agree to
make the greatest efforts possible to achieve this goal.
142 Article 34(g) of the OAS Charter. - The Member States agree that equality of opportunity, the elimination of
extreme poverty, equitable distribution of wealth and income and the full participation of their peoples in decisions
relating to their own development are, among others, basic objectives of integral development. To achieve them, they
likewise agree to devote their utmost efforts to accomplishing the following basic goals: […] g) Fair wages, employment
opportunities, and acceptable working conditions for all.
143 Advisory Opinion OC-10/89, supra, para. 43.
144 Advisory Opinion OC-10/89, supra, paras. 43 and 45.
Document No. 325
Constitutional Court of the Russian Federation, On the
case concerning the verification of constitutionality of
article 12 of the Law of the USSR of 9 October 1989 “On
the Order of Settlement of Collective Labour Disputes
(Conflicts)” (1995)
Constitutional Court of the Russian Federation, On the case concerning the verification of
constitutionality of Article 12 of the Law of the USSR of 9 October, 1989 “On the Order of Settlement
of Collective Labour Disputes (Conflicts)”, 17 May 1995
Constitution of the Russian Federation
Article 15, paragraph 4
Universally recognized principles and norms of international law as well as international agreements of the
Russian Federation should be an integral part of its legal system. If an international agreement of the Russian
Federation establishes rules, which differ from those stipulated by law, then the rules of the international
agreement shall be applied.
Article 17, paragraph 1
In the Russian Federation human and civil rights and freedoms shall be recognized and guaranteed according
to the universally recognized principles and norms of international law and this Constitution.
Country:
RUSSIAN FEDERATION
Subject:
Right to strike
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:
Ratified treaty
Law restricting the exercise of the right to strike/ Institution of proceedings before the Constitutional Court for
unconstitutionality of the law/ Analysis of the relevant national and international provisions/ Use of international law
as a guide for interpreting domestic law
The flight personnel of several airlines had gone on strike, but the strike had been ruled illegal by the ordinary
courts, which held that it was against the law on the procedures for settling labour disputes in Russia. Proceedings
were instituted before the Constitutional Court to have the law in question declared unconstitutional.
The Constitutional Court referred first of all to the provisions of the Constitution, which recognized the legitimacy of
the right to strike but authorized the legislator to restrict it for certain categories and added that these
Constitutional provisions were compatible with international law and that the latter was intended to serve as a guide
for the legislator for determining any restrictions which might be made to the right to strike:
“Nor does the restriction of the right to strike contradict the generally accepted principles and rules of international
law. Thus, proceeding from the regulations of the International Covenant on Economic, Social and Cultural Rights,
the prohibition of the right to strike is admissible with regard to persons who are the complement of the armed
forces, police and administration of the state (part two of Article 8), and with regard to other persons the
restrictions are possible if they are needed in the democratic society in the interests of state security or social order
or for the protection of the rights and freedoms of others (paragraph “c” of part one of Article 8). In addition, the
international legal acts on human rights ascribe the regulation of the right to strike to the sphere of internal
legislation. But this legislation must not go beyond restrictions permitted by these acts.”
Having considered the national and international sources of law, the Constitutional High Court held that any
restriction of the flight personnel’s right to strike was illegal. The offending article in the legislation was
unconstitutional, however, in that it did not introduce adequate differences between the various categories of
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personnel working in civil aviation and thus excessively extended the scope of the restriction of the right to strike.
The Constitutional Court urged the Federal Assembly of the Russian Federation to reword the article in the law
pertaining to restriction of the right to strike, thereby taking account of the relevant articles of the Constitution and
the generally accepted principles and rules of international law in order to determine the extent of any restrictions
that might be made to the right to strike.
International Covenant on Economic, Social and Cultural Rights, 1966.
Law of 9 October 1989 on the Settlement of Collective Labour Disputes.
Article 37(4) of the Constitution of the Russian Federation: “The right of individual and collective labour disputes
with the use of the methods for their resolution, which are provided for by federal law, including the right to strike,
shall be recognized.”
Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights: “1. The States Parties to the
present Covenant undertake to ensure: (…) (d) The right to strike, provided that it is exercised in conformity with
the laws of the particular country.”
Article 8(2) of the International Covenant on Economic, Social and Cultural Rights: “This Article shall not prevent
the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police
or of the administration of the State.”
Article 55(2) of the Constitution of the Russian Federation: “No laws denying or belittling human and civil rights
and liberties may be issued in the Russian Federation.”
Article 55(3) of the Constitution of the Russian Federation: “Human and civil rights and liberties may be restricted
by the federal law only to the extent required for the protection of the fundamentals of the constitutional system,
morality, health, rights and lawful interests of other persons, for ensuring the defence of the country and the
security of the state.”
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Document No. 326
Constitutional Court of South Africa, South
African National Defence Union v. Minister of Defence,
Case No. CCT 27/98 (1999)
Constitutional Court of South Africa, South African National Defence Union v. Minister of Defence, 26
May 1999, Case No. CCT 27/98
Country:
SOUTH AFRICA
Subject:
Right to strike , Freedom of association
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:
Ratified treaties
Constitutionality of national provisions prohibiting freedom of association to the members of the armed forces/
Interpretation of the national Constitution in the light of ILO Conventions/ Use of international law as a guide for
interpreting domestic law
The South Africa Constitutional Court had to determine whether the provisions prohibiting members of the armed
forces from participating in public protest action and from joining trade unions were restraining constitutional rights.
If it did, the Court would have to determine whether that restriction was justified.
Article 23(2) of the National Constitution states:
“Every worker has the right: 1) to form and join a trade union 2) to participate in the activities and programs of a
trade union 3) to strike.”
In order to decide if the law was restricting rights protected by the Constitution, the Court had to determine whether
it could be said that members of the armed forces were “workers” as contemplated by section 23(2) of the
Constitution. To interpret Article 23 of Constitution, the Court relied on ILO Conventions and Recommendations:
“Section 39 of the Constitution provides that when a court is interpreting chapter 2 of the Constitution, it must
consider international law. In my view, the conventions and recommendations of the International Labour
Organization (the ILO), one of the oldest existing international organizations, are important resources for
considering the meaning and scope of “worker” as used in section 23 of our Constitution.”
The Court referred to Articles 2 and 9(1) of ILO Convention No. 87 and concluded that:
“It is clear from these provisions, therefore, that the Convention does include “armed forces and the police” within
its scope, but that the extent to which the provisions of the Convention shall be held to apply to such services is a
matter for national law and is not governed directly by the Convention.”
Noting that ILO Convention No. 98 adopted the same approach, the Constitutional Court concluded the following:
“The ILO therefore considers members of the armed forces and the police to be workers for the purposes of these
Conventions, but considers that their position is special, to the extent that it leaves it open to member states to
determine the extent to which the provisions of the Conventions should apply to members of the armed forces and
the police.”
Adopting the same approach as of ILO Conventions Nos. 87 and 98, the Court considered that the word “worker” of
Article 23(2) of the Constitution should be interpreted to include members of armed forces. However, their
constitutional rights protected by this Article could be limited by national legislations, as long as that limitation was
reasonable and justifiable in an open and democratic society as provided in section 36 of the Constitution.
The Constitutional Court of South Africa concluded that the total ban on trade unions in the armed forces was
clearly going beyond what is reasonable and justifiable to achieve the legitimate State objective of a disciplined
military force. Therefore, the Court declared that the national provision was unconstitutional. On the other hand, the
Court decided that the prohibition of the right to strike to the armed forces did not violate the Constitution.
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ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO
Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98).
Article 2 of Convention No. 87: “Workers and employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organisation concerned, to join organizations of their own choosing
without previous authorization.”
Article 9(1) of Convention No. 87: “The extent to which the guarantees provided for in this Convention shall apply
to the armed forces and the police shall be determined by national laws or regulations.”
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Document No. 327
Constitutional Court of Colombia, Fourth Appellate
Supervisory Chamber, Sindicato de las Empresas Varias
de Medellín v. Ministry of Labour and Social Security, the
Ministry of Foreign Relations, the Municipio of Medellin
and Empresas Varias de Medellín E.S.P., T-568/99 (1999)
Constitutional Court, Fourth Appellate Supervisory Chamber, Sindicato de las Empresas Varias de
Medellín v. Ministry of Labour and Social Security, the Ministry of Foreign Relations, the Municipio of
Medellin and Empresas Varias de Medellín E.S.P., 10 August 1999, T-568/99
Political Constitution of the Republic of Colombia
Article 53
(...) The international labour Conventions, duly ratified, form part of domestic legislation (…).
Article 93, paragraph 1
The international treaties and conventions ratified by Congress that recognize human rights and prohibit their
restriction in states of emergency prevail in domestic order. The rights and duties consecrated in this Charter
shall be interpreted in accordance with the international treaties on human rights ratified by Colombia.
Country:
COLOMBIA
Subject:
Dismissal , Protection against discrimination in employment and occupation , Right to strike
Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:
Ratified treaties; Instruments not subject to ratification; Work of international supervisory bodies
Right to strike/ Protection against anti-union discrimination/ Anti-union dismissals as the result of the declaration of
illegality of a strike by the administrative authority/ Direct resolution of a dispute on the basis of international law/
Direct application of international law to waive a national provision less protective towards workers
Workers made application for jurisdiction for having been dismissed for participating in a strike that was declared
illegal by the administrative authority, demanding reintegration into their jobs.
This case had already been studied by the ILO Committee on Freedom of Association, which made a
recommendation urging the Government to reintegrate the workers into their jobs, workers who were dismissed for
having participated in the strike mentioned earlier. In order to justify their claim, the applicants submitted the
recommendation of the Committee on Freedom of Association.
However, the request was refused and deemed unfair, arguing that the trade union had already exhausted all the
ordinary instances. Furthermore, the Court denied it, based on the non-obligatory nature of the application of the
ILO Recommendations. Faced with this situation, the workers insisted on their claim and made this application for
protection.
In order to determine whether dismissal for participating in a strike that had been declared illegal by the
administrative authority would constitute anti-union dismissals in violation of the National Constitution, the
Constitutional Court applied ILO Conventions Nos. 87 and 98. The Court considered that when the administrative
authority declared the strike illegal, the workers were deprived of the guarantee of impartiality and protection
against anti-union discrimination.
At the same time, the Court statted that “(…) [The Committee on Freedom of Association] is the body that can
make recommendations of binding character according to the norms that govern the Organization.”
Likewise, it added that “Colombia is obligated, in virtue of the position as State Party to the ILO Constitution, to
respect the recommendations of the Governing Body.”
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The Court, in order to base its decision concerning the anti-union dismissal, stated the following:
“(…) the trade union was excluded from the verification of the strike that was carried out by the Ministry for Labour
and Social Security with the participation of the employer, but not the workers. (…) that action violates the right of
participation of the workers affiliated with the trade union (of both those that participated in the strike as well as
those that did not) and of the applicant trade union, as well as ILO Conventions Nos. 87 and 98, which form part of
the block of constitutionality.
(…) the ILO Constitution and Conventions Nos. 87 and 98 concerning freedom of association (treaty and
conventions duly ratified by Congress, which describe rights that cannot be suspended, even under states of
emergency), shall also be included, in addition to the articles of the Universal Declaration of Human Rights, the
International Covenant of Rights Economic, Social and Cultural and the American Convention on Human Rights.
They were faced with Articles 430 and 450 of the Labour Code on which the dismissal was based and, of course,
the recommendation of the International Labour Organization’s Committee on Freedom of Association.”
As a result, the Constitutional Court of Colombia applied ILO Conventions Nos. 87 and 98, as well as the
recommendation of the Committee on Freedom of Association in order to determine violation of the National
Constitution. On this basis, the Court declared the dismissals null and ordered reintegration of the dismissed
workers as well as the recognition of the salaries and benefits that they did not receive.
ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO
Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98); International Covenant on
Economic, Social and Cultural Rights, 1966; American Convention on Human Rights (“Pact of San José, Costa
Rica”), 1969.
ILO Constitution, 1919; Universal Declaration of Human Rights, 1948.
ILO Committee on Freedom of Association.
Complaint against the Government of Colombia submitted by the Trade Union of Workers of Medellín Municipal
Enterprises (EEVVMM) (See ILO: Report of the Committee on Freedom of Association, Case No. 1916, Report No.
309, Official Bulletin, Vol. LXXXI, 1998, Series B, No. 1, para. 105).
Articles 39 and 56 of the Constitution of Colombia expressly establish the right of association, formation of trade
unions and striking, while Articles 53 and 93 of the Constitution expressly state that international labour
Conventions form part of domestic legislation granting precedence in the domestic order to the international
treaties concerning human rights.
According to the Constitution of Colombia, duly ratified international labour Conventions form part of domestic
legislation (Article 53) and the international treaties and conventions ratified by Congress, that recognize human
rights and prohibit their limitation in states of emergency, shall prevail in domestic order (Article 93). As can be
seen, the treaties on human rights are integrated into domestic regulation with higher hierarchy.
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Document No. 328
Constitutional Court of South Africa, NUMSA v. Bader
Bop, Case No. CCT 14/02 (2002)
Constitutional Court of South Africa, NUMSA v. Bader Bop, 13 December 2002, Case No. CCT 14/02
Country:
SOUTH AFRICA
Subject:
Right to strike , Freedom of association , Collective bargaining
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:
Ratified treaties; Work of international supervisory bodies
Means of action of minority trade unions/ Importance of ILO Conventions and the proceedings of the ILO
supervisory bodies in the interpretation of national law/ Use of international law as a guide for interpreting domestic
law
A minority trade union wanted to call a strike in order to exercise the right to have a works steward. South African
legislation provided that trade unions which were sufficiently representative could seek to assert their right to
organize through mediation, arbitration or strike, but the law was silent as to the means of action of minority trade
unions. The company had brought an action to have the strike banned. According to the Appeal Court’s
interpretation of the Labour Code, a minority union did not have the right to call a strike. The union brought the
matter before the Constitutional Court.
Before considering the merits of the case the Constitutional Court defined the rules of law applicable to the dispute,
and thereby found that South African trade union law was intended to fulfil South Africa’s obligations as a member
State of the International Labour Organization and that national legislation should therefore be interpreted in
compliance with the State’s obligations under public international law. The Court considered in this instance that
ILO Conventions No. 87 on Freedom of Association and Protection of the Right to Organise and No. 98 on the
Right to Organise and Collective Bargaining were to be taken into account.
After referring to the relevant articles of these two Conventions, the Constitutional Court explained the functions of
the ILO Committee on Freedom of Association and the ILO Committee of Experts on the Application of
Conventions and Recommendations. The High Court found that:
“Its decisions [of the ILO Committee on Freedom of Association] are therefore an authoritative development of the
principles of freedom of association contained in the ILO Conventions. The jurisprudence of these committees too
will be an important resource in developing the labour rights contained in our Constitution.”
The Court then examined the “jurisprudence” of the two supervisory bodies pertaining to strikes and the means of
action available to trade unions and pointed out that:
“These principles culled from the case law of the two ILO committees are directly relevant to the interpretation both
of the relevant provisions of the Act and of the Constitution.”
In the Court’s opinion, allowing minority unions means of action was more in conformity with the “jurisprudence" of
the two ILO supervisory bodies. Furthermore, it found that this interpretation had the advantage that it did not
restrict the rights protected by the Constitution.
The Court therefore held that the Labour Court’s interpretation of the Labour Code was plausible but did not take
sufficient account of the guidelines of international law:
“However, it (the tribunal) fails to take into account sufficiently the considerations that arise from the discussion of
the ILO Conventions outlined above and, in particular, does not avoid the limitation of constitutional rights. The
question we must answer, therefore, is whether the Act is capable of an interpretation that does avoid limiting
constitutional rights.”
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The Constitutional Court consequently sought an interpretation of the law which limited infringements of
constitutional rights and concluded that minority unions could seek to recover rights through collective bargaining.
The Court held that:
“A better reading is to see section 20 as an express confirmation of the internationally recognized rights of minority
unions to seek to gain access to the workplace, the recognition of their shop-stewards as well as other
organizational facilities through the techniques of collective bargaining.”
It was thus held that where employers and unions had the right to negotiate on an issue it was natural to assume
that unions also had the right to strike on the same issue.
The Constitutional Court thus recognized that minority unions could seek to recover certain rights through collective
bargaining and that, if the negotiations failed, they had the right to strike. The Court reversed the decision of the
Appeal Court.
ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO
Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98).
ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Committee on Freedom
of Association.
The Constitutional Court also mentioned ILO Convention on Workers’ Representatives, 1971 (No. 135), and ILO
Convention on Collective Bargaining, 1981, (No. 154) but did not rely on them.
Section 20 of the Labour Act which forms part of Chapter III, Part A, on collective bargaining: “Nothing in this Part
precludes the conclusion of a collective agreement that regulates organizational rights.”
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Document No. 329
Constitutional Court of Peru, Juan José Gorriti and more
than 5,000 citizens v. Congress of the Republic,
Case No. 008-2005-PI/TC (2005)
Constitutional Court, Juan José Gorriti and more than 5,000 citizens v. Congress of the Republic of
Colombia, 12 August 2005, Case No. 008-2005-PI/TC
Constitution of Peru
Article 3
The list of rights set out in this chapter does not exclude any others guaranteed by the Constitution, those of
an analogous nature or based on the dignity of man, the principles of the sovereignty of the people, the
democratic State of law and the republican form of government.
Article 55
Treaties ratified by Peru and in force form part of domestic law.
Article 56
Treaties must be adopted by Congress before their ratification by the President of the Republic, whenever
they deal with the following subjects: 1. Human rights; 2. The nation’s sovereignty, dominion or territorial
integrity; 3. National defence; 4. Financial obligations of the Government.
Article 57, paragraph 2
Whenever a treaty affects constitutional provisions, it must be approved through the same procedure
governing constitutional reform before being ratified by the President of the Republic.
Final transitional provision No. 4
Provisions concerning the rights and freedoms recognized by the Constitution are interpreted in accordance
with the Universal Declaration of Human Rights and with treaties and international agreements dealing with
the same issues and ratified by Peru.
Labour Procedure Law (No. 29497 of 2010)
Supplementary provision n°10
In accordance with the provisions of the fourth final and transitional provision of the Political Constitution of
Peru, individual and collective labour rights shall be interpreted in accordance with the Universal Declaration
of Human Rights and the relevant international treaties and agreements ratified by Peru, in addition to the
consultation of the pronouncements of the supervisory bodies of the International Labour Organization (ILO)
and the opinions or decisions adopted by international courts constituted according to treaties to which Peru is
party.
Country:
PERU
Subject:
Right to strike , Freedom of association , Collective bargaining
Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:
Ratified treaties
Freedom of association/ Collective bargaining/ Right to strike/ Direct resolution of a dispute on the basis of
international law
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During this process of unconstitutionality against Law No. 28175 “Framework Law on Public Employment”, the
claimants argued that the aforementioned law contravened the Peruvian Constitution, since article 15 did not
include in the list of rights of civil servants the rights to organize, collective bargaining and strike action. In its
defence, the Congress of Republic of Peru argued that the fact that the law did not set out these rights did not
mean that they had been disregarded, since these rights had been recognized by the Constitution and international
conventions.
The Court concluded that there was no breach of the constitutional standards. The Court considered that the rights
recognized by Law 28175 were not exhaustive and did not disregard the rights recognized by other legal
provisions. The Court supported its argument using national and international standards, including ILO Convention
No. 87 which, according to the Constitution, formed part of the legal system. In this regard, the Court pointed out
that:
“Equally, in accordance with the Fourth Final and Transitory Disposition of the Supreme Law, international treaties
on human rights must be applied when interpreting the rights and freedoms enshrined in the Constitution on labour
matters. In effect, the labour rights of the public workers alluded to by the claimants must be interpreted in
accordance with the provisions of Article 9 of Convention No. 87 concerning Freedom of Association and Protection
of the Right to Organize; Article 8 of the International Covenant on Economic, Social and Cultural Rights; [...] and
others.”
With regard to the case of the right to collective bargaining, the Court indicated that this right was subject to
restrictions, a fact that was recognized by ILO Convention No. 151. In the case of Peru, collective bargaining
between the state and civil servants was restricted by budgetary matters:
“Article 7 of the aforementioned Convention [No. 151] establishes that measures appropriate to national conditions
shall be taken where necessary to encourage and promote full development and utilization of negotiation
procedures between the public authorities concerned and employers’ organizations [...] In effect, as part of the
national conditions referred to in ILO Convention No. 151, the Constitution establishes standards concerning the
public budget [...] Thus, in the case of collective bargaining with civil servants, such negotiations should be carried
out taking the constitutional restrictions which demand a balanced and fair budget into consideration”.
In conclusion, making use of ILO Convention No. 87, the Court found that the law allowed the exercise of the right
to freedom of association, collective bargaining and strike action by civil servants, although the right to collective
bargaining was subject to constitutional restrictions, a fact that was in line with the provisions of ILO Convention
No. 151.
ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); ILO Labour
Relations (Public Service) Convention, 1978 (No. 151).
P. 33 of the decision.
P. 35 of the decision.
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Document No. 330
Bobo – Dioulasso Appeal Court, Social Chamber, Messrs
Karama and Bakouan v. Société Industrielle du
Faso (SIFA), No. 035 (2006)
Bobo – Dioulasso Appeal Court, Social Chamber, Messrs. Karama and Bakouan v. Société
Industrielle du Faso (SIFA), 5 July 2006, No. 035
Constitution of Burkina Faso
Article 151
Treaties or agreements which have been duly ratified or adopted shall upon their publication have a higher
authority than the laws, provided that each agreement or treaty is applied by the other party.
Country:
BURKINA FASO
Subject:
Right to strike
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:
Ratified treaty; Work of international supervisory bodies
General strike/ Legality of the strike/ Reference to ILO Convention No. 87/ Use of international law as a guide for
interpreting domestic law
On the initiative of several trade-unions in Burkina Faso, notice of a nationwide 48-hour strike by workers in the
public and private sectors was given to the Head of State and the Director General of Employment, Labour and
Social Security. Although their employer had been notified, two private-sector workers were dismissed for taking
part in this strike.
When the Bobo-Dioulasso Labour Court ruled that these dismissals were legitimate, the two workers took their
case to the Appeal Court, arguing that the strike in the private sector was a solidarity strike, legitimized by the
public-sector strike it was supporting. Their employer claimed on the contrary that that the provisions of the Labour
Code prohibited any strike not arising within the enterprise itself and that, in this case, the strike, which was
motivated by external factors, was illegal.
The Appeal Court, having noted that the strike was a general national strike involving all sectors and concerning a
number of grievances relating to wages, taxation and workers’ rights, referred to ILO Convention No. 87. Explaining
the basis for its reasoning, it pointed out, on the one hand, that:
“The principle of conformity of interpretation assumes that the legislator has not violated or does not intend to
violate the spirit of the international treaties it has ratified”
And, on the other:
“That the judge is able to refer to the said international instruments and to experts’ comments in the event of
contradictions, insufficiencies, loopholes or backwardness in relation to the progress advocated by the treaties”.
Applying these principles, the Appeal Court considered that the strike, which was a general strike based on
professional and economic interests aiming to find solutions to issues of social policy, was legitimate and lawful in
accordance with the statements of the Committee on Freedom of Association of the Governing Body of the ILO as
expressed in its Digest of Decisions.
The Court then ruled that, although the national legislator had not expressly provided a mechanism for initiating a
strike in a case of this kind, the strike initiated in the private sector drew its legitimacy from the strike initiated in the
public sector in conformity with national law. To support this analysis, the Court again referred to the statements of
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the Committee on Freedom of Association of the ILO’s Governing Body, pointing out that, in this case, no court or
body independent of the Administration (an interested party in the strike) had been appealed to assess whether it
was legal or not.
Interpreting the provisions of national law relating to strikes in the light of ILO Convention No. 87 and the Digest of
Decisions of the Committee on Freedom of Association, the Appeal Court therefore ruled that the strike was
legitimate and legal and declared that each of the appellants had been wrongfully dismissed.
ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87).
ILO Committee on Freedom of Association.
ILO, Freedom of Association, Digest of decisions and principles of the Freedom of Association Committee of the
Governing Body of the ILO, Fourth revised edition, (Geneva, 1996), para. 494. In the updated version of that digest
(fifth revised edition of 2006), see para. 543.
Op. cit., paras. 522 ff. In the updated version of that digest (fifth revised edition of 2006), see para. 628 ff.
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Document No. 331
Arbitration Tribunal, Fiji Electricity & Allied Workers
Union v. Fiji Electricity Authority, FJAT 62; FJAT Award 24
(2006)
Arbitration Tribunal, Fiji Electricity & Allied Workers Union v. Fiji Electricity Authority, 9 May 2006,
[2006] FJAT 62; FJAT Award 24 of 2006
Country:
FIJI
Subject:
Right to strike
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:
Ratified treaties; Work of international supervisory bodies
Consideration of payment of bonus to certain employees in exchange for "no strike and no lockout"/ Consideration
of the right to strike under domestic and international law/ Use of international law as a guide for interpreting
domestic law
This case arose out of a dispute between the Fiji Electricity and Allied Workers Union and Fiji Electricity Authority
about the Union’s 2004 Log of Claims for a collective agreement and other work related issues. The outstanding
claims by the Union, set out in the Log of Claims, on which the Arbitration Tribunal was required to make a
determination, related to public holidays, shift work and a $200 bonus.
Only in the Tribunal’s consideration of the third claim did it refer to international law. The third claim related to the
fact that the Authority paid a $200 annual bonus to “hourly paid employees” performing electrical work who were
represented by the Electrical Trades Union (the “ETU”). These employees were covered by a separate collective
agreement, which included a clause that provided for payment of the bonus every year in recognition of there being
agreement to “no strike and no lockout”.
The Fiji Electricity and Allied Workers Union submitted that the employees it represented did similar work to those
who belonged to the ETU. It claimed that a clause should be inserted in the collective agreement between the
parties providing for the payment of the $200 bonus annually. The proposed collective agreement did not include a
rule of “no strike and no lockout”. The Authority refused this claim.
In this context, the Tribunal noted that section 33 of the Constitution of Fiji, gave workers the right to form and join
trade unions and to organise and bargain collectively. The Tribunal further noted that the right to freedom of
association and collective bargaining were the subject matter of ILO Conventions Nos. 87 and 98, which had been
ratified by Fiji in 2002 and 1974, respectively.
The Tribunal stated:
“Although the right to strike is not specifically referred to in the Constitution nor is it recognized in Conventions No.
87 and 98, the ILO's supervisory bodies have provided some guidelines on the subject. As a result it is now
accepted that the right to strike is one of the essential means available to workers and their organisations for the
promotion and protection of their economic and social interests". (Committee of Experts - General Survey 1983
paras 200 and 205).”
The Tribunal stated that, consequently, it accepted the right to strike was a right extended to workers under section
33 of the Constitution. It also stated that the same section of the Constitution set out certain circumstances which
may enable a law to place limitations on the right to strike.
The Tribunal then noted:
“The ETU members are engaged in the provision of electricity services. Under the legislations this industry is
classified as an essential service and this is an accepted classification under ILO standards. As a result their right
to strike is somewhat restricted under the legislation and generally speaking the restrictions are consistent with ILO
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standards. The Tribunal therefore is reluctant to be seen to be endorsing an agreement which surrenders a group
of workers already restricted right to strike, especially when that right is surrendered for a mere $200 per annum.
As a result the Tribunal has taken the view that the $200 bonus should also be paid to the Union’s members whose
Collective Agreement contains a clause which demonstrates a commitment to a reasonable approach to the
exercise of the right to strike.”
The Tribunal ordered that payment of the bonus to the Fiji Electricity and Allied Workers Union’s members be
backdated to 2003.
The use of the work of the ILO Committee of Experts therefore assisted in the Tribunal to articulate a definition of
workers’ constitutional rights to freedom of association and collective bargaining, as including a qualified right to
strike.
ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); ILO Right to
Organise and Collective Bargaining Convention, 1949 (No. 98).
ILO Committee of Experts on the Application of Conventions and Recommendations.
Pages 3-4 of the decision.
The Tribunal stated those limitations are set out in the Trade Disputes Act Cap 97.
Page 4 of the decision.
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Document No. 332
Constitutional Court of Colombia, Decision No. C-858/08
(2008)
Constitutional Court, 3 September 2008, Decision No. C-858/08
Political Constitution of the Republic of Colombia
Article 53
(...) The international labour Conventions, duly ratified, form part of domestic legislation (…).
Article 93, paragraph 1
The international treaties and conventions ratified by Congress that recognize human rights and prohibit their
restriction in states of emergency prevail in domestic order. The rights and duties consecrated in this Charter
shall be interpreted in accordance with the international treaties on human rights ratified by Colombia.
Country:
COLOMBIA
Subject:
Right to strike , Freedom of association
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:
Ratified treaty; Work of international supervisory bodies
Freedom of association/ Right to strike/ Legitimacy and ownership of the right to strike/ Restrictions on the right to
strike/ Demands pursuable through strike action/ Political strike action/ Use of international law as a guide for
interpreting domestic law
Public proceedings of unconstitutionality were brought against two interpretations of articles 429 and 450 of the
Substantive Labour Code (Código Sustantivo del Trabajo, CST) which ascribed an economic and professional
purpose to strike action and established that strike action would be illegal when it pursued any other purpose.
The plaintiff felt that the CST standards partially challenged violate the Political Constitution, as well as various
international instruments, since they impede, in a discriminatory and unreasonable way, the ability to strike of
workers belonging to unions, union federations and confederations that do not make a claim of the kind outlined
above, disregarding the fact that the Constitution does not establish any distinction in this respect that could be
relevant in making such a judgement.
In order to clarify the legal problem presented by this case, the Court referred to the scope and meaning of the
constitutional guarantee of the right to strike in the Colombian legal system. Following this examination of the legal
system, the Court presented the following conclusions:
“[…] the guarantee of the right to strike has boundaries that are well-defined by the constitution, of which we can
highlight its relative nature; with regard to its exercise, it is conditioned to the sphere of the laws that regulate it,
which in developing that right must take into account its primarily labour related, collective, universal and pacific
nature, and in particular its primary purpose of defending the economic and professional interests of workers.”
The Court then looked to establish the type of demands pursued by the strike that are protected by the body of
principles established by the International Labour Organization (ILO) by means of its Committee on Freedom of
Association and the Committee of Experts on the Application of Conventions and Recommendations. In particular,
the Court cited the comments published by the Committee regarding the right to strike, which define it as an
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essential corollary of the right to organize protected by ILO Convention No. 87 as one of the fundamental rights
afforded to workers and workers’ organizations “solely to the extent to which it constitutes a method of promoting
and defending their economic and social interests”. Moreover, it took into consideration that:
“The Committee on Freedom of Association considers that ‘strikes of a purely political nature … do not fall within
the scope of the principles of freedom of association’. It also indicated that ‘[i]t is only in so far as trade union
organizations do not allow their occupational demands to assume a clearly political aspect that they can
legitimately claim that there should be no interference in their activities’. […] Nevertheless, according to the
Committee on Freedom of Association, workers and workers’ organizations should be able to express their
dissatisfaction with economic and social matters affecting their interests (...) [but] the action of workers should be
limited to expressing a protest and not have the aim of disturbing the public peace.
[…] The Commission also considers that organizations whose role is to defend the socio-economic and
professional interest of workers should, in principle, be able to have recourse to strike action to support their
positions in search of solutions to problems deriving from important economic and social policy issues, which have
immediate consequences for their members and workers in general, in particular in the sphere of employment,
social protection and living conditions.”
In light of the pronouncements of the ILO Commission of Experts and the ILO Committee on Freedom of
Association, the Court concluded that the articles subject of the proceedings, when interpreted in strict terms, do
not violate the text of the Constitution. Thus, the Court decided to declare the provisions constitutional, although it
placed conditions on their interpretation, with the understanding that the purposes of strike action (economic and
professional) do not exclude strike action taken to express positions related to social, economic or sectorial policy
that directly affect the exercise of the relevant activity, occupation, trade or profession.
ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
ILO Committee on Freedom of Association; ILO Committee of Experts on the Application of Conventions and
Recommendations.
Section 5 of the decision.
Section 4 of the decision.
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Document No. 333
High Court of Lobatse, Botswana Public Employees’
Union and others v. Minister of Labour and Home Affairs
and others, MAHLB-000674-11 (2012)
High Court of Lobatse, Botswana Public Employees’ Union and others v. Minister of Labour and
Home Affairs and others, MAHLB-000674-11, 9 August 2012
Country:
BOTSWANA
Subject:
Right to strike
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:
Ratified treaties; Foreign case law
Right to strike/ Essential services/ Use of international law as a guide for interpreting domestic law
Registered trade unions representing various categories of public sector employees sought orders declaring invalid
Section 49 of the Trade Disputes Act (“the TDA”) and the amendment, effected through Statutory Instrument No.
57 of 2011 (“SI 57”) by the Minister of Labour and Home Affairs, of the schedule to the TDA which set out the list of
essential services. With this amendment the list of essential services was broadened so as to include veterinary
services, diamond cutting, sorting and selling services, and teaching services.
The Court upheld the applicants’ position that Section 49 of the TDA was unconstitutional since the Constitution
assigns the power to legislate to Parliament, and then addressed the three arguments put forward by the applicants
regarding the invalidity of SI 57. First, the applicants argued that SI 57 was “ultra vires Section 49 of the TDA,
because, on a proper interpretation, that section does not empower the Minister to publish an order – as he did –
which is incompatible with Botswana’s ILO obligations”. The Court observed that “[i]n this country, the courts take
the broad view that constitutional and statutory provisions must be construed to uphold international law”. The
Court then noted that Botswana has ratified two ILO Conventions, namely No. 87 on Freedom of Association and
Protection of the Right to Organize and No. 98 on the Right to Organize and Collective Bargaining, and that the ILO
Committee of Experts on the Application of Conventions and Recommendations (CEACR), in interpreting these
conventions, has defined essential services “for the purpose of limiting the right to strike” as “services the
interruption of which would endanger life, personal safety or the health of part of or the whole population”.
Moreover, it observed that “their [the experts’] opinions are generally regarded as a source of international labour
law” and that the CEACR had also addressed an observation to the Government of Botswana in which it
expressed the view that “the new categories added to the Schedule do not constitute essential services in the strict
sense of the term” and had requested the amendment to that Schedule. In the light of the above the Court
concluded that Section 49, assuming its constitutional validity, should be interpreted as not authorising a Minister to
pass a statutory instrument that violates Botswana’s international law obligations. Therefore SI 57 was invalid.
The Court then examined whether the argument according to which the list of essential services was in breach of
Section 13 of the Constitution, which guarantees freedom of association but also permits limitations which are
reasonably justifiable in a democratic society. The Court observed that, not being clear whether under Section 13
freedom of association includes the right to strike, “it is incumbent upon this court … to interpret the said section in
a manner that is consistent with international law” and it noted that “[t]he right to freedom of association in
international law includes the right to strike.” Moreover, “international law does not accept the prohibition of strike
action to safeguard economic interests as a limitation that is reasonably justifiable in a democratic society”, which
was the alleged justification for most of the added categories of essential services, and “the ILO committee of
experts (…) seems to accept that it is reasonably justifiable in a democratic society to restrict the right to strike only
to the extent that meets its definition of ‘essential services’”. Therefore SI 57 was unconstitutional.
The Court finally turned to the applicants’ contention that they had a legitimate expectation that the executive would
take decisions consistent with Botswana’s international obligations. In this regard the Court took the view that “[t]he
act of signing [ILO Conventions] gave rise to an expectation that the officers of the Executive would not act in a
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manner that contradicts the letter and spirit of those Conventions unless they (applicants) have been afforded the
opportunity to argue to the contrary.” Therefore the promulgation of SI 57 was null.
Thus relying on Conventions Nos. 87 and 98 and the pronouncements of the ILO Committee of Experts, the Court
decided that SI 57, which broadened the list of essential services, was invalid and of no force or effect.
ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); ILO Right to
Organize and Collective Bargaining Convention, 1949 (No. 98).
Australia, South Africa, UK, United States. The Court also referred to the Botswana case Attorney-General v.
Dow, 3 July 1992, BLR 119 (CA).
Section 49: “The Minister may, by order published in the Gazette, amend the Schedule.”
Para. 28.4 of the decision.
Para. 192 of the decision.
ILO: Freedom of Association and Collective Bargaining, General Survey of the Committee of Experts on the
Application of Conventions and Recommendations, International Labour Conference, 81th Session, Geneva, 1994,
Report III(4B), para. 159.
Para. 223 of the decision, which also refers to an identical conclusion in the Botswana Railways v Botswana
Railways Train Crew Union, Civil Appeal No. CA CACLB -042-09.
Observation by the Committee of Experts on the application by Botswana of ILO Convention No. 87 published in
2012.
Para. 249 of the decision.
Para. 250 of the decision.
Para. 252 of the decision.
Para. 276 of the decision.
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Document No. 334
Higher Labour Court, Zavascki, Roberto Antonio v.
Companhia Minuano de Alimentos, Brasilia (2012)
Higher Labour Court, Zavascki, Roberto Antonio v. Companhia Minuano de Alimentos, Brasilia, 15
February 2012, Case No. TST-RR-77200-27.2007.5.12.0019
Constitution of Brazil
Article 5
(1) Norms that define fundamental rights and guarantees are immediately applicable.
(2) The rights and guarantees expressed in this Constitution do not exclude other rights stemming from the
system and principles adopted by this text or stemming from international treaties to which the Federal
Republic of Brazil is a party.
(3) International treaties and conventions on individual rights that are adopted by both houses of the
Congress, in two rounds, by three fifths of the votes of the members of each house will be the equivalent of
constitutional amendments.
Country:
BRAZIL
Subject:
Right to strike , Freedom of association
Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:
Ratified treaties
Freedom of association/ Anti-union practice/ Reinstatement in a job/ Direct resolution of a dispute on the basis of
international law
In the present case, the enterprise subject of the legal action had been ordered by the lower court to pay
compensation for anti-union discriminatory practices, since it had been proven that the dismissal in question had
been carried out because the worker had taken part in a stoppage that took place in April 2007.
The Court ruled that the employer’s argument that the dismissal had been due to the worker’s refusal to carry out
duties was an invalid one, since an absence from duties is inherent to strike action, and that the behaviour of the
employer in violating the principle of freedom of association and the free exercise of the right to strike could not be
tolerated.
The Court noted that the application of standards carried out by the lower court demonstrated a full observation of
the principle of freedom of association and non-discrimination in full accordance with Article 1 of ILO Convention
No. 98, since all workers must be protected against discriminatory acts that violate freedom of association.
Likewise, the Court made reference to Article 1 of ILO Convention No. 111, which states: “1. For the purpose of this
Convention the term discrimination includes: a) any distinction, exclusion or preference made on the basis of race,
colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or
impairing equality of opportunity or treatment in employment or occupation; b) such other distinction, exclusion or
preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or
occupation as may be determined by the Member concerned after consultation with representative employers’ and
workers’ organisations, where such exist, and with other appropriate bodies.” The Court then pointed out that in a
democratic state of law, governed by the constitutional values of freedom and the recognition of work as a
fundamental right, which guarantees the exercise of the right to strike, the practice of any act that discriminates
against participants in strike action must be sanctioned.
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The Court concluded that the dismissal of the workers based on their participation in action related to a stoppage
constituted a discriminatory practice, since it violated standards of public order (Law No. 7783/89 and Law
9029/95), as well as international treaties (ILO Conventions Nos. 98 and 111) and constitutional standards (articles
3, 5 and 9). It ordered the reinstatement of the worker to their job, doubling the compensation awarded from the
date of dismissal.
ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98); ILO Discrimination (Employment and
Occupation) Convention, 1958 (No. 111); American Convention on Human Rights (“Pact of San José, Costa Rica”).
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Document No. 335
Supreme Court of Justice of Colombia, Employment
Appeals Chamber (Sala de Casación Laboral), Carbones
de la Jagua S.A. v. National Union of Mining and
Power Industry Workers (SINTRAMIENERGETICA),
Case No. 57731 (2013)
Supreme Court of Justice, Employment Appeals Chamber (Sala de Casación Laboral), Carbones de
la Jagua S.A. v. National Union of Mining and Power Industry Workers (SINTRAMIENERGETICA), 10
April 2013, Case No. 57731
Political Constitution of the Republic of Colombia
Article 53
(...) The international labour Conventions, duly ratified, form part of domestic legislation (…).
Article 93, paragraph 1
The international treaties and conventions ratified by Congress that recognize human rights and prohibit their
restriction in states of emergency prevail in domestic order. The rights and duties consecrated in this Charter
shall be interpreted in accordance with the international treaties on human rights ratified by Colombia.
Country:
COLOMBIA
Subject:
Right to strike
Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:
Ratified treaties; Work of international control bodies
Right to strike/Exercise of the right to peaceful strike/Use of violence/Collective bargaining/Reference to
international law to strengthen a decision based on domestic law
The claimant lodged this dispute in order to request that the Court declare illegal the work stoppage initiated by the
trade union on the grounds that violent was used during the stoppage, infringing the prohibition of violence
enshrined in point f) of article 450 of the Substantive Labour Code. According to the claimant, once the collective
bargaining stage had been exhausted without any direct agreement being reached between the trade union and
the enterprise, a strike was initiated without the presence of labour authorities, employing violence to block the
entrances to the enterprise and preventing the performance of essential activities of that enterprise. The trade
union denied using violence but admitted that it attended the street blockade to prevent the strike from being
obstructed by the enterprise.
The Supreme Court of Justice referred to the provisions of domestic law and national case law, indicating that the
right to strike forms part of the constitutional system of the collective right to work reinforced by ILO Conventions
Nos. 87 and 98, which form part of the constitutional bloc. Nevertheless, in accordance with the scope of the right
to strike established by case law in the Constitutional Court, the right to strike does not constitute a fundamental
right in so far as its exercise is subject to legal regulation, and is not an absolute right but a relative one, since it is
subject to limitations such as its peaceful exercise.
The Court then referred to the recommendations of the ILO Committee on Freedom of Association on the subject of
pickets contained in the collection of decisions and principles of the Committee on Freedom of Association of the
Governing Body of the ILO. In this respect, the Court observed:
“In fact, national legislation finds support in the principles and recommendations of the ILO Committee on Freedom
of Association, in particular the recommendations of paragraphs 649, 650 and 651 on strike pickets, which state
that strike action is only legitimate when it is peaceful (649) and the activity of workers is solely limited to peacefully
inciting workers not to occupy their workstations (651), proscribing activities whose aim is “disturbing public order
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and threatening workers who continued work” (650) or when their action “accompanied by violence or coercion of
non-strikers” (651), while paragraph 667 clearly expresses that “The principles of freedom of association do not
protect abuses consisting of criminal acts while exercising the right to strike”.
[…] The Committee on Freedom of Association of the Governing Body of the ILO in paragraphs 324 and 325 of
Report 323, states that ‘the occupation of plantations by workers and by other persons is contrary to Article 8 of
Convention No. 87.’”
Based on the above, the Court concluded that, in the light of the contents of the Constitution, national case law,
and the recommendations of the ILO Committee on Freedom of Association, there was no “open definition” of strike
action that permitted the occupation of a workplace, and much less so the use of violence. Consequently, it
declared the strike subject of the present dispute to be illegal.
ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); ILO Right to
Organise and Collective Bargaining Convention, 1949 (No. 98).
ILO Committee on Freedom of Association.
Article 450 ILLEGAL CASES AND SANCTIONS. 1. Work stoppage is illegal in any of the following cases […] f)
When it is not limited to the peaceful suspension of work activities.
Report of the ILO Committee on Freedom of Association (No. 323) GB279/8, 279th session of November 2000,
Case 2021.
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Document No. 336
Supreme Court of Justice of Colombia, Employment
Appeals Chamber (Sala de Casación Laboral), CBI
Colombiana S.A v. Petroleum Industry Workers’ Trade
Union (USO), Case No. 59420 (2013)
Supreme Court of Justice, Employment Appeals Chamber (Sala de Casación Laboral), CBI
Colombiana S.A v. Petroleum Industry Workers’ Trade Union (USO), 10 April 2013, Case No. 59420
Political Constitution of the Republic of Colombia
Article 53
(...) The international labour Conventions, duly ratified, form part of domestic legislation (…).
Article 93, paragraph 1
The international treaties and conventions ratified by Congress that recognize human rights and prohibit their
restriction in states of emergency prevail in domestic order. The rights and duties consecrated in this Charter
shall be interpreted in accordance with the international treaties on human rights ratified by Colombia.
Country:
COLOMBIA
Subject:
Right to strike
Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:
Ratified treaty
Right to strike/Principle of the legality of strike action/Exercise of the right to peaceful strike/Collective
bargaining/Reference to international law to strengthen a decision based on domestic law
This dispute originated from the request for a strike held by employees of the enterprise CBI Colombiana S.A. at its
refinery in Cartagena to be declared illegal. According to the claimant, the strike was initiated by the members of
the Petroleum Industry Workers’ Trade Union (USO) with the aim of obtaining an extralegal bonus. The enterprise
claimed that violence was used during the work stoppage and that the strike took place without previously
exhausting the negotiation procedure stipulated by law. The USO claimed that it had not initiated the strike, stating
that the action was initiated by employees and that the trade union had acted solely as a mediator.
Based on witness, documental and recorded evidence, the Court ruled that the trade union had been involved in
the work stoppage and that it was therefore pertinent to determine whether the strike had been legal or illegal. The
Court began its analysis by drawing a distinction between strike action called within a collective bargaining process
following the exhaustion of the direct negotiations phase and strike action called due to the non-compliance of an
employer with their employment obligations, the strike in question in this dispute being of the latter type, since there
was no negotiation process seeking an agreement in progress in this case. The Court then indicated that the
legitimacy of strike action is determined by its observance of the legal requirements in force, and its peaceful
exercise in accordance with the provisions of the Substantive Labour Code and ILO Convention No. 87:
“Work stoppages are considered legitimate when they respect the law and are carried out in a peaceful manner.
With respect to the first of these points, Article 8.1 of ILO Convention No. 87 establishes that: ‘In exercising the
rights provided for in this Convention workers and employers and their respective organisations, like other persons
or organised collectivities, shall respect the law of the land.’”
Having pointed out that both international legislation and ILO Convention No. 87 require respect for the law when
initiating a work stoppage, the Court examined the requirements to be fulfilled before strike action could be initiated
in accordance with the Substantive Labour Code. The Court concluded that the correct procedure had not been
followed, and that, furthermore, violence had been used. Given the above, the Court declared the strike illegal.
ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
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Document No. 337
Constitutional Council of Senegal, Case No. 2/C/2013
(2013)
Constitutional Council, 17 July 2013, Case No. 2/C/2013
Country:
SENEGAL
Subject:
Freedom of association , Right to strike
Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:
Ratified treaty; Work of international supervisory bodies
Attendance of a public meeting related to trade union activities / Customs inspection staff / Use of international law
to strengthen a decision based on domestic law
A customs inspector brought an annulment appeal for an ultra vires act against an administrative decision
penalising his attendance of a public meeting related to trade union activities. In support of his claim, he posited the
unconstitutionality of the law on the status of customs staff, which denies these officers freedom of association and
the right to strike. The administrative division of the Supreme Court responsible for ruling on the dispute, stayed the
proceedings and referred the case to the Constitutional Council so that it could rule on the constitutionality of the
law in question.
Proceeding to analyse Article 8 of the Constitution, which guarantees civil and political freedoms, and in particular
the freedom of association, to meet and to demonstrate, as well as trade union freedoms; and Article 25 of the
Constitution, which establishes the right to strike, the Constitutional Council nonetheless emphasised that these
freedoms and rights are not absolute and “that in providing that they act within the framework provided by law, the
drafters of the constitution intended to state that the right to strike and the freedom of association have limits
resulting from the necessary reconciliation between defending professional interests, which the strike was a means
of defending, and protecting the general interest which the strike could affect”.
The Constitutional Council continued relying on Article 8(2) of the International Covenant on Economic, Social and
Cultural Rights which, from the Court’s point of view, “falls within this perspective” by authorizing legal restrictions
on the exercise of the right to strike with respect to members of the armed forces, the police and the civil
service. To support its argument, the Court also referred to the work of the ILO Committee on Freedom of
Association. More specifically, the Council cited the 226 report of the Committee in which it recognized, with
respect to government officials and the judiciary, that the right to strike “[could] be subject to restrictions, such as
suspension or prohibition”. The Council also referred to the 304 report of the Committee in which the Committee
stated that “the prohibition on the right to strike for customs officers, officials in positions of authority in the state,
was not contrary to the principles of freedom of association”.
As “customs staff, paramilitary corps, provide a public service which cannot accommodate a deliberate interruption
that endangers the functioning of the state and that the general interest thereby also justified the ban by the
legislator on the right to strike and freedom of association of customs staff”, the Constitutional Council decided that
the law questioned by the applicant was not contrary to the Constitution.
In this ruling, the Constitutional Council thus upheld that neither freedom of association nor the right to strike are
absolute, on the basis of the provisions of the Constitution; this justification was strengthened by reference to the
International Covenant on Economic, Social and Cultural Rights as well as the work of the ILO Committee on
Freedom of Association.
International Covenant on Economic, Social and Cultural Rights, 1966.
ILO Committee on Freedom of Association.
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Paragraph 9 of the decision.
Paragraph 10 of the decision.
Paragraph 11 of the decision.
Paragraph 12 of the decision.
Paragraph 14 of the decision.
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Document No. 338
Industrial Court of Kenya, Universities Academic Staff
Union v. Maseno University, Case No. 814’N’ (2013)
Industrial Court of Kenya, Universities Academic Staff Union v. Maseno University, 18 September
2013, Case No. 814'N' of 2009
Constitution of Kenya (2010)
Article 2
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
Country:
KENYA
Subject:
Dismissal , Protection against discrimination in employment and occupation , Right to strike
Role of International Law:
Direct resolution of a dispute on the basis of international law , Establishment of a jurisprudential principle based on
international law
Type of instruments used:
Non-ratified treaty; Work of international supervisory bodies
Dismissal/ Right to strike/ Protection against anti-union discrimination/ Direct resolution of a dispute on the basis of
international law
In this case, the Universities Academic Staff Union, representing five of its members, alleged that the respondent
university had illegally and unfairly terminated the contracts of the five workers in question. In October 2006, the
trade union held a strike. The union held that the disciplinary committee proceeded to dismiss the workers using
their participation in the strike as justification. In its defence the University argued that the strike had been declared
illegal by the relevant legal authorities, and participants in the strike had been ordered to return to work
immediately. These facts motivated the University to dismiss the professors who had refused to return to work.
On examining the facts of the case, the Industrial Court of Kenya concluded that the five workers had been
dismissed on the basis of their participation in activities preceding the strike and in the strike itself. In the cases of
Dr. Mary Goretti Kiriaga and Dr. Billy G Ng'ong'ah, the dismissals were also motivated by their position as union
officials.
The Court then proceeded to highlight the legal provisions applicable to the case, indicating that at the time the
events took place, national labour legislation had not been very advanced; “However, that as it may be Kenya is a
member of the ILO and is expected to respect its international obligations including respect for International Labour
Standards.” The Court underlined the importance of protecting trade union members against acts of anti-union
discrimination, and in particular of the need to protect workers’ labour relations from being terminated based on
their membership of a trade union or participation in trade union activities. In this respect, the Court referred to ILO
Termination of Employment Convention, 1982 (No. 158) and the General Survey of the Committee of Experts of the
ILO on Protection against Unjustified Dismissal, in which the Committee states that:
“The need to base termination of employment on a valid reason is the cornerstone of the Convention's provisions.
The adoption of this principle removes the possibility for the employer to unilaterally end an employment
relationship of indeterminate duration by means of a period of notice or compensation in lieu thereof.”
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Article 5 of ILO Convention No. 158 states that: “The following, inter alia, shall not constitute valid reasons for
termination: (a) union membership or participation in union activities outside working hours or, with the consent of
the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers'
representative […]
Protection against acts of anti-union discrimination, and in particular termination of employment for such activities,
is particularly necessary for trade union leaders and representatives since in order to be able to fulfil their duties
freely and independently they must have the guarantee that they will not suffer any prejudice as a result of holding
trade union office or taking up trade union activities […]”
The Court then indicated that Professor K. Inyani J. Simala had not been given an opportunity to defend himself,
and that it was also appropriate to refer to ILO Convention No. 158 in this respect, stating that:
“Convention No. 158 at Article 7 provides that: ‘The employment of a worker shall not be terminated for
reason related to worker's conduct or performance before he is provided an opportunity to defend himself against
the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.’”
In order to decide on the appropriate remedy for the five workers, the Court referred to the Digest of Decisions and
Principles of the Committee of on Freedom of Association, which in paragraph 837 states that:
“No one should be subjected to anti-union discrimination because of legitimate trade union activities and the
remedy of reinstatement should be available to those who are victims of anti-union discrimination.”
In conclusion, and based on ILO Convention No. 158 and the pronouncements of the ILO Committee of Experts,
the Court ruled that the termination of the employment contracts in question was illegal and unjustified. Based on
the above, and in line with the recommendations of the ILO Committee on Freedom of Association, the Court ruled
that the best form of compensating the workers would have been to reinstate them; however, since a long period of
time had passed between the dismissals and the judgement, the Court instead ordered compensation to be paid to
the workers.
ILO Termination of Employment Convention, 1982 (No. 158).
ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Committee on Freedom
of Association.
Page 38 of the decision.
ILO: Protection against Unjustified Dismissal General Survey of the Committee of Experts on the Application of
Conventions and Recommendations, International Labour Conference, 82 Session, Geneva, 1995.
Pages 39 and 40 of the decision.
Page 43 of the decision.
ILO: “Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the
Governing Body of the ILO”, fifth revised edition, 2006.
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Document No. 339
Supreme Court of Justice of Colombia, R y R. asociados
S.A. v. National trade union of workers in the cork,
plastics, polyethylene, polyurethane,
synthetics, components and derivatives processing
industry, Case No. 59413 (2014)
Supreme Court of Justice, R y R. asociados S.A. v. national trade union of workers in the cork,
plastics, polyethylene, polyurethane, synthetics, components and derivatives processing industry, 27
August 2014, Case No. 59413
Political Constitution of the Republic of Colombia
Article 53
(...) The international labour Conventions, duly ratified, form part of domestic legislation (…).
Article 93, paragraph 1
The international treaties and conventions ratified by Congress that recognize human rights and prohibit their
restriction in states of emergency prevail in domestic order. The rights and duties consecrated in this Charter
shall be interpreted in accordance with the international treaties on human rights ratified by Colombia.
Country:
COLOMBIA
Subject:
Right to strike
Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:
Work of international supervisory bodies
Work stoppage/ Strike action/ Reference to international law to strengthen a decision based on domestic law
The enterprise lodged an appeal requesting that the strike held by the trade union be declared illegal since it did
not comply with the legal requirements for embarking on strike action. The enterprise alleged that it had gone into
liquidation but that it was still paying wages on time; however it had been unable to comply with its social security
payment obligations.
In its defence, the trade union argued that their action had not taken the form of a strike in the context of a
collective labour dispute but a work stoppage which was the fault of the employer, which had not met its social
security contributions.
The Supreme Court indicated that the legislation recognized four types of work stoppages, including stoppages
undertaken due to the failure of an employer to comply with their labour and social security obligations. The Court
also underlined that all work stoppages must comply with the general requirements of being carried out in an
orderly and peaceful manner. In this respect, the Court pointed out that:
“The ILO Committee on Freedom of Association has repeatedly maintained that the legitimate exercise of freedom
of association does not encompass abuses of the right to strike in its exercise, such as criminal acts.”
The Court considered that the prior requirements for embarking on a work stoppage did not signify support for a
failure to comply with obligations on the part of employers; rather, they were a guarantee of the employer’s right to
defence, since otherwise the employer would not have the right to contest or find ways of resolving the failure to
meet their obligations. The Court highlighted that on this issue the Committee on Freedom of Association had
stated as follows:
“The obligation to give prior notice to the employer before calling a strike may be considered acceptable.”
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Given that the trade union had not proved that they had complied with the legal requirements for embarking on the
stoppage, the Court, making use of the work of the Committee on Freedom of Association to strengthen its
decision, declared the work stoppage to be illegal.
ILO Committee on Freedom of Association.
Page 20 of the decision.
Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO,
2006, paragraph 552.
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Document No. 340
Industrial Court of Nigeria, Aero Contractors Co. of
Nigeria Limited v. the National Association of Aircrafts
Pilots and Engineers, the Air Transport Senior Staff
Association of Nigeria and the National Union of Air
Transport Employees, Case No. NICN/LA/120/2013
(2014)
Industrial Court of Nigeria, Aero Contractors Co. of Nigeria Limited v. the National Association of
Aircrafts Pilots and Engineers, the Air Transport Senior Staff Association of Nigeria and the National
Union of Air Transport Employees, 4 February 2014, Case No. NICN/LA/120/2013
Constitution of the Federal Republic of Nigeria
Article 12, paragraph 1
No treaty between the Federation and any other country shall have the force of law to the extent to which any
such treaty has been enacted into law by the National Assembly.
Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010
254 C - (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this
Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National
Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court
in civil causes and matters-
(…)
(h) relating to, connected with or pertaining to the application or interpretation of international labour
standards;
(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the
jurisdiction and power to deal with any matter connected with or pertaining to the application of any
international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment,
workplace, industrial relations or matters connected therewith.
Country:
NIGERIA
Subject:
Right to strike
Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:
Work of international supervisory bodies
Right to strike/ Essential services/ Air transport/ Direct resolution of a dispute on the basis of international law
The enterprise Aero Contractors Co. of Nigeria Limited, dedicated to the air transport of people and goods, called
on the Industrial Court of Nigeria to decide whether members of the trade unions the National Association of
Aircrafts Pilots and Engineers, the Air Transport Senior Staff Association of Nigeria and the National Union of Air
Transport Employees had the right to call and embark on strike action. The enterprise argued that, according to the
provisions of the Trade Unions Act of 2004, the transport of passengers and goods was an essential service; on
these grounds, the law restricted the right to strike of the members of the trade unions subject to the legal action.
The trade unions argued that, according to the ILO Committee on Freedom of Association, the prohibition of strike
action in the case of essential services was solely acceptable when there was a clear and imminent threat to the
life, personal safety or health of the whole or part of the population, and that these requisites were not fulfilled in
this case.
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The unions also considered that the prohibition of strike action constituted a breach of the rights to freedom of
association and collective bargaining, contradicting the provisions of ILO Conventions Nos. 87 and 98. The
enterprise objected to the application of these Conventions, considering that since there was no law that had
introduced the Conventions into the country’s legal system, they did not have the force of law.
In its analysis the Court concluded that, contrary to the standpoint expressed by the enterprise, Section 245C of the
Constitution did grant the Court the jurisdiction and power to apply any international convention ratified by Nigeria.
The Court then referred to the pronouncements of the ILO Committee on Freedom of Association recalling that:
“[…] by the ILO publication, Freedom of Association: Digest of decisions and principles of the Freedom of
Association Committee of the Governing Body of the ILO (1996), Fourth (revised) edition at paragraph 131 at page
29, “the right to strike and to organize union meetings are essential aspects of trade union rights”.
With the aim of deciding whether air transport was an essential service, the Court referred to the work of the ILO
Committee of Experts on the Application of Conventions and Recommendations, pointing out that:
“ … the Committee of Experts defined such services as those “the interruption of which would endanger life,
personal safety or health of the whole or part of the population”.
Thus, the Committee has considered to be essential services in the strict sense, where the right to strike may be
subject to major restrictions or even prohibitions, to be: the hospital sector; electricity services; water supply
services; the telephone service; air traffic control. In contrast, the Committee has considered that, in general, the
following do not constitute essential services in the strict sense of the term, and therefore the prohibition to strike
does not pertain: [...] aircraft repairs [...] transport generally […]”.
Making use of the work of the ILO Committee of Experts and the Committee on Freedom of Association to interpret
the Trade Unions Act of 2004, the Court concluded that the trade union members defendants in the case did have
the right to embark on strike action since the services they provided were not essential; however, if any union
member provided air traffic control services then the prohibition of strikes would apply to that member.
ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Committee on Freedom
of Association.
Pag. 18 of the decision.
Pag. 19 of the decision.
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Document No. 341
Labour Court of South Africa, Chamber of Mines of South
Africa v. Association of Mineworkers of South Africa,
National Union of Mineworkers, United Association of
South Africa, Case No. J99/14 (2014)
Labour Court of South Africa, Chamber of Mines of South Africa v. Association of Mineworkers of
South Africa, National Union of Mineworkers, United Association of South Africa, 23 June 2014, Case
No. J99/14
Country:
SOUTH AFRICA
Subject:
Right to strike , Collective bargaining
Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:
Instrument not subject to ratification; Work of international supervisory bodies
Collective bargaining/ Right to strike/ Non-union members/ Place of work/ Reference to international law to
strengthen a decision based on domestic law
In this case, the Court examined the appeal lodged by the Association of Mineworkers of SA against the sentence
of the court of the first instance, which had ruled in favour of the Chamber of Mines of South Africa. The ruling of
the first instance declared valid the extension of the collective agreement signed between the Chamber of Mines,
the National Union of Mineworkers, the Solidarity and the United Association of South Africato include workers who
were not members of those organizations. The decision had been made in line with the provisions of article 23 (1)
(d) of the Labour Relations Act (LRA), which had been interpreted in the sense that every mining company
constituted a workplace. The Association of Mineworkers wanted the Court to recognize the fact that, since it had
majority representation in five mines, it could embark on a new negotiation process with the Chamber with the
understanding that each mine was an independent workplace. Alternatively, the Association called for the definition
of a workplace contained in article 23 of the Labour Relations Act (LRA) to be declared unconstitutional, since it
constituted an unfair restriction on the right to strike by denying the workers who were union members and covered
by the collective agreement the possibility of exercising this right.
The Court considered that there was no incongruity or absurdity resulting from the application of the statutory
definition, nor was there any injustice, and consequently it rejected the main claim of the Association. In relation to
the secondary claim, the Court considered that, according to article 23 of the Labour Relations Act (LRA), the right
to strike was by its nature subject to restrictions; however, the question in this case was to establish whether the
restrictions given on the definition of a workplace were fair and reasonable. The Court considered that this
restriction had its roots in a political decision on the part of the legislator to adopt a specific model of collective
bargaining in the workplace, and since this had been a majority decision, it should be considered legitimate. The
Court then underlined that since the restriction on the right to strike was possible in accordance with national and
international standards, the restriction subject to the action was fair. In this regard, the Court observed that:
“[The ILO’s Committee of Experts on the Application of Conventions and Recommendations and the Committee on
Freedom of Association]have interpreted Conventions Nos. 87 and 98 as to includea right to strike. [...] both
[bodies] accept as a starting point that the right to strike is not absolute and that it may be restricted or, in
exceptional circumstances, even prohibited.
Paragraph 142 of the General Survey on the fundamental Conventions concerning rights at work in the light of the
ILO Declaration on Social Justice for a Fair Globalisation tabled at the 2012 International Labour Conference reads
as follows: ‘[...] If legislation prohibits strikes during the term of collective agreements, this restriction must be
compensated by the right to have recourse to impartial and rapid arbitration machinery for individual or collective
grievances concerning the interpretation or application of collective agreements’”.
Subsequently, and in relation to the extension of collective agreements, the Court indicated that:
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“[…] the Collective Agreements Recommendation, 1951 (No.91) provides in Article 4 that ‘the stipulations of a
collective agreement should apply to all workers concerned employed in the undertakings covered by the
agreement unless the agreement specifically provides to the contrary.’ In a gloss on Recommendation 91, the
Committee of Experts states at paragraph 245 of the General Survey that ‘extension of collective agreements is not
contrary to the principle of voluntary collective bargaining and is not in violation of Convention No. 98’”.
Based on the above, the Court concluded that the restriction of the right to strike created by the definition of the
workplace contained in article 23 of the Labour Relations Act (LRA) was not unconstitutional, and that the
aforementioned restriction was compatible with the principles of freedom of association defined by the ILO
Committee of Experts and the Committee on Freedom of Association. The Court therefore dismissed the case of
the Association of Mineworkers.
Collective Agreements Recommendation, 1951 (No. 91).
ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Committee on Freedom
of Association.
Pages 29 and 30 of the decision.
Pages 30 and 31 of the decision.
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Document No. 342
Supreme Court of Canada, Saskatchewan Federation of
Labour v. Saskatchewan, Case No. 2015 CSC 4 (2015)
Supreme Court of Canada, Saskatchewan Federation of Labour v. Saskatchewan, 30 January 2015,
Case No. 2015 CSC 4
Country:
CANADA
Subject:
Collective bargaining , Right to strike
Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:
Ratified treaties; Work of international supervisory bodies
Canadian Charter of Rights and Freedoms/ Right to strike/ Right to collective bargaining/ Law limiting the exercise
of the right to strike of employees providing essential services/ Use of international law as a guide for interpreting
domestic law
An appeal was filed with the Canadian Supreme Court, in which the appellants disputed the constitutionality of two
laws adopted by the government of Saskatchewan. According to the appellants, the Public Service Essential
Services Act, SS 2008 c. P-42.2 (hereinafter the PSESA) and the Trade Union Amendment Act 2008 were in
breach of Article 2(d) of the Canadian Charter of Rights and Freedoms with respect to freedom of association.
The PSESA defined a legislative scheme that prohibited the exercise of the right to strike by public sector
employees who provided essential services, so that these employees were required to continue to carry out their
duties in accordance with the terms established by the collective agreement, with no effective mechanism provided
to resolve the deadlock in collective bargaining. The Trade Union Amendment Act 2008 amended the trade union
certification process by increasing the percentage of employee support required and reducing the period within
which this support had to be obtained in writing. It also amended the rules on the employer’s communication with
its employees.
While the Supreme Court rapidly dismissed the legal question concerning the constitutionality of the Trade Union
Amendment Act 2008, stating that this law “did not breach s. 2(d)”, with respect to the PSESA, the Court was
confronted by the legal question of determining whether the freedom of association guaranteed in Article 2(d) of the
Charter protects the right to strike and, if so, to examine whether the prohibition on employees providing essential
services taking part in a strike substantially hinders the right to a true collective bargaining process.
The Court made a very significant change to its case law as it recognised for the first time that “the right to strike is
constitutionally protected because of its crucial role in a meaningful process of collective bargaining”.
In support of its argument, the Court specifically relied on Canada’s accession to international instruments
recognising the right to strike, as well as other sources of international law. It specifically referred to Article 8(1)(d)
of the International Covenant on Economic, Social and Cultural Rights, Article 45 of the Charter of the Organization
of American States as well as ILO Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87).
In this respect, the Court highlighted: “Although Convention No. 87 does not explicitly refer to the right to strike, the
ILO supervisory bodies, including the Committee on Freedom of Association and the Committee of Experts on the
Application of Conventions and Recommendations, have recognized the right to strike as an indissociable corollary
of the right of trade union association that is protected in that convention”. Referring to the digest of decisions and
principles of the Committee on Freedom of Association, it added: “Though not strictly binding, the decisions of the
Committee on Freedom of Association have considerable persuasive weight and have been favourably cited and
widely adopted by courts, tribunals and other adjudicative boards around the world, including our Court”.
The Court also relied on the international consensus reached concerning the necessity of the right to strike to
meaningful collective bargaining by citing the case law of the European Court of Human Rights.
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Based on the above, the Supreme Court deduced “that a meaningful process of collective bargaining requires the
ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and
conditions of their employment through a collective agreement. The ability to engage in the collective withdrawal of
services in the process of the negotiation of a collective agreement is, and has historically been, the irreducible
minimum of the freedom to associate in Canadian labour relations.”
It continued its examination by analysing the infringement on the freedom of association guaranteed by the
Canadian Charter of Rights and Freedoms. In this respect, the Court believed that the fact that the PSESA
prohibited the employees concerned from taking part in a strike for the purpose of negotiating their conditions of
work substantially hindered the right to a real collective bargaining process, and therefore infringed on the freedom
guaranteed by the Charter.
At this point, the crucial question, according to the Court, was whether the arguments maintained by the state
breached constitutional rights as little as possible, or otherwise. Analysing the provisions of the PSESA, the Court
noted that “The unilateral authority of public employers to determine whether and how essential services are to be
maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute
resolution mechanism to resolve bargaining impasses, justify the conclusion that the PSESA is not minimally
impairing. It is therefore unconstitutional”. The Supreme Court thus ruled the PSESA 2008 unconstitutional,
strengthening its reasoning on the basis of ratified international treaties, including Convention No. 87 and the work
of the ILO’s Committee on Freedom of Association and the Committee of Experts on the Application of Conventions
and Recommendations.
ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); International
Covenant on Economic, Social and Cultural Rights, 1966; Charter of the Organization of American States.
ILO Committee on Freedom of Association; ILO Committee of Experts on the Application of Conventions and
Recommendations.
The Supreme Court of Canada dismissed the appeal against the Trade Union Amendment Act 2008 (see
paragraph 8), stating: “The changes it introduces to the process by which unions may obtain or lose the status of a
bargaining representative, as well as the changes to the rules governing employer communication to employees,
do not substantially interfere with freedom of association.” (Paragraph 21 of the decision).
Page 51.
Para. 65-67.
Para. 67.
Para. 68-69.
Para. 71.
Page 10.
Page 15.
Page 19.
Full text of the decision
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Volume 5 - Documents 235-342