GB.277/9/1
CASE NO. 2030
DEFINITIVE REPORT
Complaint against the Government of Costa Rica presented by – the Rerum Novarum Confederation of Workers (CTRN) and – the Trade Union of Workers and Retired Persons of the National Registry and Related Persons (SITRARENA)
Allegations: Failure to comply with a collective agreement in the public sector and legal restrictions on collective bargaining in the public sector
568. The complaint is contained in a joint communication from the Rerum Novarum Confederation of Workers (CTRN) and the Trade Union of Workers and Retired Workers of the National Registry and Related Persons (SITRARENA) of May 1999. The International Confederation of Free Trade Unions (ICFTU) supported this complaint in a communication dated 29 June 1999. The Government sent its observations in a communication dated 13 August 1999.
569. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. The complainants’ allegations
570. In their communication of May 1999, the Rerum Novarum Confederation of Workers (CTRN) and the Trade Union of Workers and Retired Workers of the National Registry and Related Persons (SITRARENA) explains that the National Registry contains the list of all the country’s real estate, companies, private associations, vehicles on the road, vessels, security provided as a guarantee in banking institutions, livestock records, copyright and everything connected to intellectual property; it also registers the cadastral plans of each property, as well as all other cadastral documents which show the general outlay of these properties and their location. The registry is run by an administrative board, a collegiate body made up of representatives from the authorities and professional bodies selected by the Government on the basis of lists containing three candidates; however, trade union organizations are not represented on this body.
571. The complainants allege that collective bargaining in the public sector is subject to serious limitations and restrictions in Costa Rica and that the regulations concerning collective bargaining in the public service (set up during a previous administration under Decree No. 162 of 6 October 1992 and published in the Official Gazette of 5 March 1993) have not to date been applied. Section 11 of these regulations establishes a certifying committee entrusted with approving, down to the last detail, everything negotiated between the parties and composed entirely of ministries: the Minister of Labour and Social Security, who presides the committee; the Minister of Justice (the administrative superior of the complainants); the Minister of Finance; the Minister of the Presidency; and the Minister of Planning. Section 12 also authorizes the committee to exclude whatever it might not deem fit in the reports submitted to it. Neither SITRAREWA nor the Costa Rican trade union
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movement consider that Decree No. 162 meets workers’ expectations of collective bargaining. Nonetheless, negotiations between the National Registry and SISTRARENA proceeded on the basis of this agreement, culminating in the signing of a “collective agreement”. Section 18 of these same regulations states that: “these standards are of a transitional nature given that a bill to settle collective disputes in the public sector, established as a result of tripartite consultations, shall be submitted to the Legislative Assembly”. However, this bill has not even been discussed before the Legislative Assembly, neither is it among the Government’s priorities.
572. The complainants point out that the certifying committee has only met once on 4 August 1994, when it adopted an agreement requesting the Attorney-General’s Office to pronounce the decree concerning collective bargaining in the public service null and void, which shows that the Government’s representatives on the committee do not believe that the abovementioned decree is legal.
573. The complainants add that the Government denies the existence of the collective agreement signed by SITRARENA, which was the only one that took effect on the basis of the abovementioned regulations. They also point out that this collective agreement has been ignored by the administrative board of the National Registry and the Ministry of Justice and has not been applied, despite the fact that SITRARENA has brought the matter before various administrative and judicial bodies. All this points to the fact that there is no compliance with Conventions Nos. 87, 98 and 135.
574. According to the complainants, after strikes had been carried out, the “collective agreement” was signed, approved by the administrative board of the National Registry and submitted by SITRARENA to the Ministry of Labour and Social Security on 5 August 1995; however, the Minister of Labour and Social Security of that time failed to convene the certifying committee provided for under the collective bargaining regulations which, moreover, at its first (and only) meeting, considered that the decree concerning the abovementioned regulations was illegal and therefore requested that it be annulled.
575. Subsequently, the Ministry of Labour at that time stated the following in writing:
… In reply to your request, I should like to inform you that inside the copy of the file enclosed, there is no original or duly certified copy of the “collective bargaining” mentioned with the signatures of the signatory parties or the date of registration. There is only a certified copy of a document with this title, which fails to comply with the conditions mentioned.
According to the complainants, it was precisely by using as an argument the inaccurate statement of the former Minister of Labour that the Minister of Justice, who presides the administrative board of the National Registry, succeeded in getting this collegial body to sign an agreement and subsequently annul under decision No. 18-97 all the terms of the agreement concerning the collective bargaining of 17 April 1997. From this moment on, the Director-General of the National Registry asked its representatives to refrain from attending the joint bodies that had been operating for a year on the basis of the “collective agreement” – such as the Labour Relations Board and the Occupational, Safety and Health Committee – and informed all the bodies of the National Registry that all the rights granted workers under the “collective agreement” were null and void. The complainant organizations point out that, given such a serious violation, SITRARENA filed administrative proceedings to annul the decision taken by the administrative board, which are still pending despite the fact that they were initiated more than two years ago (and might take five years). SITRARENA also turned to the Constitutional Court of the Supreme Court of Justice (which dismissed the appeal for amparo (enforcement of constitutional rights)) and the National Inspectorate and the General Labour Board, GB.277/9/1
without success (the complainants summarize a number of decisions and criteria put forward by the Constitutional Court and the Attorney-General’s Office).
576. The complainants add that in a communication dated 24 July 1998, the Legal Affairs Board of the Ministry of Labour made the following pronouncement which goes back on the statement made by the previous Minister of Labour:
… 2. The said collective agreement [between SITRARENA and the National Registry] was submitted to this ministry [Ministry of Labour] on 9 August 1995 for approval, in accordance with section 8 of the abovementioned regulations concerning collective bargaining in the public sector, provided for under paragraph 11 of these regulations. To date, no decision has been taken in this respect.
… B. Specific reply: taking into account the opinion put forward by the Attorney-General’s Office in the abovementioned communication O.J.-064-98 of 17 July 1998, to the effect that the said regulations [on collective bargaining] are in force, it is the opinion of this Board that the “collective bargaining” that we are examining [National Registry-SITRARENA] should be considered approved, given that the time limit of two months stipulated in paragraph 14 of the said regulations has expired.
The problem for the complainants is that this pronouncement had no effect whatsoever and did not serve any purpose because the present Minister of Justice still continues to refuse the existence and validity of the “collective agreement”. The present administration of the National Registry also refuses to acknowledge the “collective agreement” and requests that the matter be settled either by the courts or the ILO. For their part, the complainants request that the existing “collective agreement” should enter into effect and not be arbitrarily ignored; they also ask that it should be effectively recognized in order to re-establish the rights of workers that were infringed and that there should be a possibility for renegotiation once it has expired. The complainants also call for the adoption of legislation promoting collective bargaining in the public sector and request that a direct contacts mission be sent to the country.
B. The Government’s reply
577. In its communication of 13 August 1999, the Government states that the complaint contains careless and inexact allegations giving a wrong impression to the ILO of the events which occurred, because it is made up of inaccurate, subjective and rash statements with absolutely no foundation either in fact or in law. The complainants deny the content of communications signed by the former Ministry of Labour, when, in fact, they provide no reliable evidence in support of their statements.
578. The Government adds that the protection of trade union rights is of primary importance because it constitutes one of the major objectives firmly spelt out in the national plan for dialogue, promoted by the President of the Republic with the active participation of the Minister of Labour and Social Security, and all the civil society in Costa Rica. Indeed, a few days after the elections held in February of the previous year, the President set up a special committee to study and recommend possible measures to reconcile the various elements within Costa Rican society around what the President called “a shared vision of the future”. In so doing, the Government has made social dialogue a reality, as demonstrated by the re-establishment of the Higher Labour Council, a tripartite body under the Ministry of Labour and Social Security, entrusted with fostering social dialogue on labour and socio-economic issues which has directly contributed to bills being submitted to the Legislative Assembly. The Government refers in length to a number of bills currently
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being examined on various issues raised by the Committee on Freedom of Association and the Committee of Experts and to government actions and judgements of the Constitutional Court which have enabled progress to be made in the area of trade union rights.
579. As regards the object of the complainant organizations’ complaint, the Government points out that collective bargaining in the public sector has recently progressed significantly, in accordance with the regulations governing action by the administration. In this respect, it is pleased to announce that the draft “public employment act” (No. 13284), published in the Official Gazette (No. 210 of 29 October 1998) is at present being examined by the Committee of Economic Affairs of the Legislative Assembly. This act reaffirms the right to collective bargaining and right to strike in the public sector, in line with the provisions established in ILO Conventions, the Constitution and the Labour Code. This bill is the outcome of much reasoning on the part of the public administration which recognizes the need for a new system of labour relations between the State and public servants. Its main objective is that the public sector should fulfil its functions in such a way that it primarily serves the public interest, whilst ensuring that civil servants feel decently paid and stimulated to carry out their work in a capable manner, thus allowing for greater flexibility of employment and improved opportunities for bargaining of employees. The Government refers to the efforts the Executive has been making until now before the Legislative Assembly to ensure that the public employment bill is adopted.
580. In this respect, the Government stresses that significant progress has been made in the process of national dialogue. Indeed, the Higher Labour Council, a tripartite negotiating body set up as an ad hoc committee to deal with the matter of freedom of association, stated, in its “report on freedom of association”, dated 5 October 1998, the following:
… Tenth: in the area of public employment, tripartite dialogue (Government, Legislative Assembly, trade unions) shall be promoted to settle matters pertaining to strikes and collective bargaining on the basis of the public employment bill, negotiated by the various sectors during the Calderón Fournier administration.
In order to ensure the preceding, a joint committee shall be set up within the Legislative Assembly to discuss the abovementioned public employment bill …
In this context, the President of the Republic issued Directive No. 103, dated 7 November 1998, published in the Official Gazette (No. 4 of 7 January 1999) to the Ministry of Labour and Social Security. Section 1 of this Directive reads as follows: “adopt the relevant administrative measures in order to: … (f) promote dialogue concerning the public employment bill”.
581. The Government thus showed that it was fully willing to improve the regulations pertaining to the right to collective bargaining of public officials and resolve any matters that had remained pending with respect to the application of ILO Conventions ratified by our country.
582. Furthermore, although it is not the subject of the complaint, the Government states that the Constitutional Court has taken an extremely important decision (Decision No. 1317-98 of 27 February 1998, Exp. 4222-a-92) which declares unconstitutional the banning of strikes in the public services (including services carried out by state officials or its institutions).
583. As regards the “right to collective bargaining of civil servants”, the Constitution provides for special statutes regulating civil servants and the Constitutional Court of the High Court of Justice, the highest judicial body in the country, whose major aim is to guarantee the GB.277/9/1
supremacy of constitutional standards and principles, was entrusted with defining the statutes in force. Consequently, the major judicial body voted an important decision on 23 August 1992 (Decision No. 1692-92), and its corresponding addendum and statement (at 3 p.m. on 30 October of the same year), which declared unconstitutional the proceedings to settle collective disputes of an economic and social nature provided for under the Labour Code, by the administrations regulated by public employment law, as long as the law did not rectify this situation. The Constitutional Court was of the opinion that articles Nos. 191 and 192 of the Constitution, mentioned earlier in the text, justified the existence, within the public sector, of a system of regulations pertaining to conditions of employment under public law. In this respect, the public employment statutes referred to by the Constitutional Court necessarily imply consequences deriving from the nature of this relationship, with its own general principles which are not only distinct from those of labour law but also in many cases opposed to these. It goes without saying that the statement contained in the ruling covers the employment relationship between the public administration and its officials; however, in those sectors which are subject to a private employment system, the solution must be different. In this respect the Constitutional Court considered it necessary to specify that manual workers, workers and employees who are not part of the public administration are excluded from this system, when they are contracted by the State subject to regulations of private law.
584. The Government points out that in view of the above and in an attempt to fill a void concerning the rights of officials in the public sector, the Government Council, at an ordinary session held on 6 October 1992, adopted Decree No. 162, containing “Regulations concerning collective bargaining in the public sector”, with a view to obtaining a balance between the constitutional standards and principles in the area by establishing special regulations to settle collective disputes in the public sector which would guarantee the rights of the public servants, on one hand, and the public power, efficiency and principle of legality of the public administration, on the other hand. In accordance with the opinion of the Attorney-General’s Office (C-161-98, dated 19 August 1998) the Constitutional Court’s decisions have not, to date, affected the regulations in question, given that the only thing the Constitutional Court has denied civil servants has been to negotiate conditions of employment by means of an instrument referred to as “collective labour agreement”, as stipulated under the third chapter of the Labour Code (section 54 and following). Contrary to what is stated in the complaint, the Attorney-General’s opinion, which is binding for the administration, clearly establishes that there is no legal obstacle preventing the special system of bargaining for the public sector known as “an agreement” (convenio) (section 8 of the abovementioned regulations) from being used in practice, it being clearly understood that the negotiations must, from all points of view, comply with the provisions of the regulations, particularly with respect to the matters covered by the negotiations in question. Furthermore, another occurrence bears witness to the fact that collective bargaining in the public sector has made considerable strides recently, whilst also respecting the regulations governing the action of the administration: the Government refers to the bill on public employment (No. 13284), published in the Official Gazette (No. 210 of 29 October 1998) which is at present being examined by the Committee of Economic Affairs of the Legislative Assembly.
585. Concerning the allegations with respect to the “collective agreement” concluded by SITRARENA and the administrative board of the National Registry, the Government refers to the reports established by the various competent authorities in this matter. First, in its circulars DM-269 and DM-830 dated 8 March and 28 July 1999, respectively, the Minister of Justice, to which the National Registry is responsible, points out that the “collective agreement” in the National Registry, which was established in the light of the regulations concerning collective bargaining in the public service, published in the Official Gazette (No. 45 of 5 March 1993), under Decree No. 162 of 9 October 1992, is riddled
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with various legal, constitutional and functional flaws, and therefore cannot be applied. Indeed, this document was not submitted to the competent body in the form and under the conditions prescribed and cannot therefore have any legal effect according to the provisions of the regulations concerning collective bargaining in the public service. The “collective agreement” is therefore not in force. Given the flaws with which the document is marred from the point of view of legal validity, the administrative body of the National Registry adopted, at its session No. 18-97 of 17 April 1997, the following decision:
1. Given the information contained in the file which is before the Minister of Labour and Social Security concerning the collective agreement concluded between the National Registry and the Trade Union of Workers and Retired Workers of the National Registry and Related Persons (SITRARENA), a file which contains neither the original of this instrument of collective bargaining, nor even a duly certified copy of this instrument, the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector was unable either to take cognizance of this instrument or to make a pronouncement on the subject matter of the case, in the terms and under the conditions required by the regulations concerning collective bargaining in the public service (Decree No. 162 of 9 October 1992 of the Government Council). It is for this reason that the administrative body of the National Registry unanimously decided the following:
To annul and consider without legal effect all administrative actions and decisions taken by the administrative body as a result of the contents of the collective agreement which is considered null and void by this decision.
For the above reason, the collective agreement in question cannot be applied as a set of recognized regulations because it has no validity, it was not submitted in due form to the competent body and not approved by the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector, it can therefore be operative.
586. Indeed, section 8 of the regulations concerning collective bargaining in the public service stipulates that “once negotiations are over, the parties shall communicate the content of the agreement to the committee so that it might revise, approve or disapprove one or any part of the agreement. Only the provision approved by the committee shall be retained in the agreement”. In this particular case, this condition was not fulfilled. Furthermore, section 12 of the same regulations, which defines the attributions of the National Committee for Certification and Ratification of Collective Bargaining, points out under paragraph (c): that it is up to this body to “authorize the signature of the agreements submitted for its approval”. It should be noted that the abovementioned regulations, which form the legal basis for the negotiation in question, stipulates that, in order for this to be effective vis-à- vis the parties and be considered in force, a mere signature on the record of proceedings is not enough; the content of the agreements must be brought to the attention of and studied, authorized or approved by the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector – which was not done in the case under consideration. It is for this reason that the collective bargaining in question is not legally valid.
587. Similarly, in the document DM-1661-97 of 17 September 1997 that he sent to the secretary-general of the trade union of workers of the National Registry, the Minister of Labour at the time stressed “that there was no collective agreement signed by the National Registry and the trade union representatives in his office”. Furthermore, in the document DM-1226-96 of 23 May 1996 that he sent to the Deputy Minister of Justice, Mόnica Blanco, the Minister of Labour pointed out that: “it is materially impossible to comply with your request given that the collective instrument with which you are GB.277/9/1
concerned is not amongst the documents at the disposal of the National Committee for Certification and Ratification of Collective Bargaining”.
588. All the above is confirmed by the content of the document that the Government enclosed with its communication and which was signed at the meeting held at the Ministry of Labour and Social Security on 16 October 1997, attended by the administrative board of the National Registry and SITRARENA. This meeting had been organized to examine the complaint lodged by SITRARENA to the Department of Labour Relations (of the Ministry of Labour and Social Security) reproaching the administrative body of the National Registry for knowing nothing about the collective bargaining. Paragraphs 2, 3 and 4 of the abovementioned document, which was signed by both parties, point out:
2. That both parties agree that the way in which the text of the collective bargaining of the National Registry in question was examined at the Ministry of Labour and Social Security raises a number of doubts that justify reviewing the administrative file established by the competent body, i.e. the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector, particularly with a view to clarifying what has been carried out until the present date.
3. Once the abovementioned doubts have been identified and clarified, the parties are willing to meet to assess and examine the document of collective bargaining in order to review it and attempt to adapt it to the new requirements and to the reference framework provided for under Costa Rican law in the area of collective bargaining in the public sector.
4. Once the examination and revision mentioned above have been completed, both parties shall submit, in accordance with the procedure provided for, the document in question to the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector, upon whom it will be incumbent to analyse the document and make the final formalities.
It is therefore clear from the facts mentioned above that the collective bargaining is not in force since it is not valid because it was not submitted in due form to the National Committee for Certification for approval.
589. Furthermore, in the decision it handed down on 1 September 1998 concerning the application for amparo (enforcement of constitutional rights) lodged by the Trade Union of Workers and Retired Persons of the National Registry following the non-application of the collective bargaining in question, the Constitutional Court upheld the arguments put forward by the administrative board of the National Registry, nonsuiting the application for amparo in its third preambular paragraph which reads as follows:
Page 120 of the file contains the circular DM-1661-97 of 17 September 1997, in which the Minister of Labour and Social Security, Mr. Farid Ayales Esna, informs Mr. Felipe Espinoza Fernández, Secretary-General of the Trade Union of Workers and Retired Persons of the National Registry, that there is no collective document signed by the National Registry and the trade union representatives at the Ministry of Labour. The Court therefore considers that approval was not given since the collective bargaining signed with the authorities of the National Registry had not been submitted to the Ministry by the appellant. The preceding comments are upheld by the statement made by the Minister of Justice in the report she submitted to this court – which, as pointed out, was established under oath – since the administrative board of the National Registry, when taking the decision which is the subject of the present procedure, takes account of the fact that “given the information contained in the file which is before the Minister of Labour and Social Security concerning the collective agreement concluded between the National Registry and the Trade Union of
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Workers and Retired Persons of the National Registry and Related Persons (SITRARENA), a file which contains neither the original of this instrument of collective bargaining nor even a duly certified copy of this instrument”. In view of the above, the Minister concerned by the appeal stated in his report that “the collective agreement in question cannot be applied as a set of recognized regulations because it has no validity given that it was not submitted in due form to the competent body and not approved by the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector”. Furthermore, the preceding comments are also confirmed by the content of the record of proceedings provided by the Ministry concerned by the appeal (see pages 113 and 114 of the file), adopted after a meeting between the Ministry in question and the appellant trade union, during which it was decided that once the document had been examined and reviewed, both parties would submit the said document to the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector, upon whom it would be incumbent to analyse the content and decide on the final formalities. Given this situation, it is obvious that the necessary final steps to ensure that the collective bargaining concluded between the parties was fully valid were not taken and that, consequently, it is not possible to say that the complainant trade union was in possession of a subjective right or legal status justifying a violation of the principle of estoppel (actios propios), because various actions still have to be taken to complete the proceedings and receive approval of the said instrument by the competent body in accordance with Directive No. 162 of 9 October 1992 containing the regulations concerning collective bargaining in the public service dealing with the authorization of the signing of such agreements. In view of the above, the Court is of the opinion that none of the fundamental rights of the appellant were infringed and therefore declares the appeal nonsuited.
590. The Minister of Justice points out that the administrative board has always been ready to reach an agreement with the trade union of workers of the National Registry, as may be seen from the abovementioned document, and that the appellant has always been the one responsible for causing all attempts at negotiation to fail. In December 1997, the Minister stated to the administrative magistrate, within the framework of another legal action on the same matter (which is in its final stages), that fresh negotiations were at present under way on the basis of points taken into consideration during the previous negotiations, it being understood that the points established as being illegal or unconstitutional could not be taken up in the new document.
591. The Labour Directorate of the Ministry of Labour was also involved in this matter; this is a body legally entrusted with attempting to settle labour disputes out of court, which published detailed reports (enclosed with the communication) summarizing the various actions it undertook in this case between December 1994 and 4 December 1997. For its part, the National Labour Inspection Directorate did not receive any complaint from SITRARENA concerning the matters brought by this trade union before the Committee of Freedom of Association.
592. The Government points out that, in their complaints, the complainant organizations completely fail to mention the negotiations in which the administration and SITRARENA are at present involved. These negotiations are taking place on the basis of the points analysed in the previous negotiations, which did not enter into force because of a series of legal flaws such as the absence of any signature of the parties on the original negotiating document, including that of the authorities of the National Registry. To date, those concerned have not succeeded in rectifying this state of affairs although many administrative overtures have been made between the parties. Furthermore, it should not be forgotten that the matter is at present in the hands of the law courts and that the proceedings are coming to an end. GB.277/9/1
C. The Committee’s conclusions
593. The Committee notes that, in this case, the complainant organization (SITRARENA) alleges that: (1) the regulations concerning collective bargaining in the public service in force, published in the Official Gazette of 5 March 1993, contains considerable restrictions (in particular, it obliges parties to collective bargaining to submit the text of their agreement to a committee of certification and ratification made up of a number of ministers, who might or might not approve the said agreement and exclude from it provisions they do not feel fit) and that it has not been applied to date; (2) within this framework, SITRARENA signed the “collective agreement” with the National Registry, but this agreement has not been applied because it has been ignored by the administrative board of the National Registry (which had nevertheless approved it) and by the Minister of Justice; furthermore, the National Committee of Certification and Ratification brought before the Attorney-General’s Office the matter of the invalidity of the decree of the Government Council concerning the regulations pertaining to collective bargaining in the public service (reason for which the previous Minister of Labour did not convene the National Committee of Certification and Ratification for it to approve the “collective bargaining”; subsequently, the Minister of Labour stated that he did not have either the original or a duly certified copy of the “collective agreement” in question, bearing the signature of the parties and the date of the signature; (3) the complainant refers to the laws which encourage collective bargaining in the public sector and recalls that the authorities committed themselves to submitting to the Legislative Assembly a law concerning the settlement of disputes in the public sector.
594. The Committee notes that the Government stresses the following points: (1) the regulations concerning collective bargaining in the public service are in force and authorize a specific form of bargaining in the public sector known as “agreement”; (2) there is a bill on public employment which will improve the opportunities for bargaining in the public sector under the conditions provided for by ILO Conventions; the Higher Labour Council (tripartite) decided on 5 October to encourage tripartite dialogue between the Government, the Legislative Assembly and the trade unions with a view to regulating collective bargaining on the basis of this bill, by setting up a joint committee in the Legislative Assembly; (3) as regards the “collective agreement” concluded between the National Registry and SITRARENA, it is riddled with a number of legal, constitutional and functional flaws, which make it inapplicable, thus explaining the fact that on 17 April 1997 the administrative board of the National Registry decided to repeal and consider invalid all the administrative acts and decisions ensuing from the collective agreement; in short, a mere signature at the end of the record of proceedings does not suffice, given that the content of agreements must be submitted to the National Committee for Certification and Ratification of Collective Bargaining which must approve it, conditions which were not fulfilled although provided for under the abovementioned regulations; furthermore, the agreement of “collective bargaining” submitted to the Ministry of Labour and Social Security was not dated and did not bear the signatures of the parties; (4) according to the document of 16 October 1997 (which the Government encloses with its communication), SITRARENA acknowledges, as moreover does the administrative board of the National Registry, that it has doubts on the procedure followed concerning the documentation with respect to the “collective agreement” of the National Registry, and the two parties state that once they have finished examining and reviewing the “collective agreement” they will submit, in accordance with the procedure provided for, the document in question to the National Committee of Certification and Ratification, which will be responsible for making a final analysis; (5) the Constitutional Court notes, in its decision of 1 September 1998, that SITRARENA did not submit the “collective agreement” signed with the authorities of the National Registry and that the National Committee for Certification did not approve this document.
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595. The Committee considers, in the light of all these factors, that the instrument known as “collective agreement” concluded between SITRARENA and the National Registry does not fulfil the legal requirements provided for under the regulations concerning collective bargaining in the public service (absence of date and signatures, failure to submit the document – for approval – to the National Committee for Certification and Ratification). The Committee nevertheless notes that, irrespective of the above, parties had reached agreements – which apparently have started being applied for certain issues – and, in all events, signed the record of proceedings; it also notes that the provision contained in the regulations concerning collective bargaining in the public service which requires the approval by the National Committee for Certification and Ratification of agreements reached, is contrary to the principles of Convention No. 98; what is more, everything would seem to point to the fact that, in practice, the present system of bargaining does not function in a satisfactory way. The Committee notes that the parties are continuing negotiations with a view to revising the “collective bargaining” and submitting the document to the National Committee for Certification and Ratification.
596. Under these circumstances, the Committee stresses the importance of adopting, as soon as possible, the bill on public employment which has been submitted to the Legislative Assembly and is at present being examined by the Committee on Legal Affairs (which the Committee noted with satisfaction at its November 1999 meeting [see 318th Report, para. 46]); the Committee draws the Government’s attention to the fact that making the validity of collective agreements signed by the parties subject to approval by the authorities of these agreements is contrary to the principles of freedom of association [see Digest of decisions and principles of the Committee of Freedom of Association, 4th edition, 1996, paras. 869-874] and of Convention No. 98; it urges the National Registry and SITRARENA to try and settle in the very near future, on the basis of the unofficial agreement they reached, all the contentious points in the “collective agreement” and urges the Government to ensure that the National Committee for Certification and Ratification – made up of ministers and whose present attributions are incompatible with the principles of freedom of association – will not change the content of the final agreement between the parties; and it requests the Government to communicate to it the outcome of the administrative proceedings on the matter dealt with in this complaint, which are at present in their final stage.
The Committee’s recommendations
597. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) Stressing the importance of adopting as soon as possible the bill on public employment submitted to the Legislative Assembly, the Committee reminds the Government that it might, if it so wishes, request the technical assistance of the ILO to ensure that the future law is fully in compliance with the principles of Convention No. 98.
(b) The Committee urges the National Registry and SITRARENA to try and settle, in the very near future, on the basis of the unofficial agreement they reached, all the contentious points in the “collective agreement”.
(c) While drawing the Government’s attention to the fact that making the validity of collective agreements signed by the parties subject to approval of these agreements by the authorities is contrary to the principles of Convention No. 98, the Committee urges the Government to ensure that the GB.277/9/1
National Committee for Certification and Ratification will not change the content of the final agreement reached by the parties.
(d) The Committee requests the Government to inform it of the outcome of the administrative proceedings on the matter dealt with in this complaint, which at present are in their final stage.
CASE NO. 1961
DEFINITIVE REPORT
Complaint against the Government of Cuba presented by the World Confederation of Labour (WCL)
Allegations: Raids and searches of trade unionists’ homes, failure to respond to requests for recognition or registration of organizations
598. The Committee examined this case at its November 1998 meeting and presented an interim report to the Governing Body [see 311th Report of the Committee, paras. 412 to 429, approved by the Governing Body at its 273rd Session in November 1998]. The complainant sent additional information in a communication of 17 December 1998. In accordance with the Committee’s procedure (paras. 49 and 50), the Office on 6 January 1999 sent the Government a copy of the additional information supplied by the complainant in order to allow it to formulate its own observations, given the contradictions between the allegations and the Government’s reply. The Government sent its observations and comments on 30 April and 10 September 1999.
599. Cuba has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. Previous examination of the case
600. Following the Committee’s examination of the case in November 1998 [see 311th Report, paras. 412 to 429], the following two allegations remained pending: (1) raids at the homes of Mr. Pedro Pablo Alvarez Ramos, President of the Single Council of Cuban Workers (CUTC), and of Mr. Vicente Escobal Ribeiro, Director of the Cuban Institute of Independent Trade Union Studies (ICESI), searches at these premises and the confiscation by state officials of documents and office property; and (2) failure of the authorities to respond to requests for formal recognition of ICESI and for registration of the CUTC.
601. In its recommendations, the Committee asked the complainant to send it the following information in addition to any comments and supplementary information which it wished to submit: the addresses of the residences which were allegedly raided; the statutes of the CUTC and ICESI and copies of the applications submitted to the authorities for their recognition and registration; a list of the organizations that make up the CUTC and the ICESI, with an indication of the sectors and workplaces where they are active, the number of workers they represent and any other relevant information concerning the nature and trade union activities of both organizations. The Committee also requested the Government
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to indicate specifically whether the CUTC and ICESI had presented a formal request for registration to the authorities and, if so, what the reply had been.
B. New allegations of the WCL
602. In its communication of 4 April, the WCL draws attention to the following information concerning the addresses which are alleged to have been raided: when the WCL refers to CUTC premises, it is referring to the residence of Mr. Pedro Pablo Alvarez Ramos, a member of the organization who makes his residence available for CUTC activities. That residence is thus also the organization’s address.
603. According to the WCL, the address of the CUTC cannot be unknown to the Government because: (1) the documents sent to the ILO with the complaint, including the organization’s constituent documents, clearly indicate where the organization is located; (2) the CUTC is known to the Government because the union has on several occasions sent it communications bearing its address; (3) as in all other countries, the security forces are obliged to keep a record of all operations conducted by their agents, clearly indicating the address where a given operation took place and other related information (such as titles and contents of any documents seized).
604. The WCL adds that, given that there are no independent unions in Cuba and no freedom of assembly, expression or association outside the structures established by the Government, it is impossible to rent premises for such purposes. For that reason, members of civil society organizations and independent trade union organizations assemble in their own homes or in public places. It is customary for the archives and papers of those organizations to be kept in members’ homes, as was the case with the CUTC.
605. In reply to the Committee’s request, the WCL states that the CUTC was established on 14 July 1995 in accordance with the principles of the Cuban Constitution and Labour Code and with the ILO Conventions to which Cuba is a signatory. The CUTC programme of action was drawn up in 1997 and its legal basis is the 1984 Labour Code. The CUTC applied to the Register of Associations of the Ministry of Justice but received no reply. This silence must be interpreted as a refusal to grant recognition. From the legal point of view, the organization is not officially recognized. Despite this, as numerous supporting documents received by the Committee indicate, its members continue to work in defence of the rights of Cuban workers. The CUTC has endeavoured to establish contacts with the Confederation of Workers of Cuba (CTC), which is officially recognized, with a view to working with that organization and making its views known. Specifically, on 25 March 1996, the six members of the CUTC Executive Committee sent a letter to Mr. Pedro Ross Leal, the General Secretary of the CTC, asking for permission to participate in that organization’s congress. The CUTC never received a reply to that request. The CUTC also sent letters to the Cuban authorities setting out its position on the social and labour situation in Cuba. The WCL cites, among others, a communication dated 10 October 1996 addressed to the Cuban National Assembly. The CUTC has never received a reply to its requests.
606. Since training is a crucial part of the CUTC’s work, the organization is supported by the Cuban Institute of Independent Trade Union Studies (ICESI). The Institute sought legal recognition in a letter of 8 October 1996 addressed to the Head of the Register of Associations of the Ministry of Justice. To the WCL’s knowledge, no reply has been received.
607. The WCL also indicates that the CUTC comprises a number of independent trade union organizations. Each of these is represented and accredited on the Council by its most senior GB.277/9/1
officer and two elected members. The National Executive Committee is the Council’s highest body and consists of a President, one organization secretary and six other secretaries. The members of the Executive Committee are elected for a two-year term after which new elections take place. The members of the CUTC are Cuban citizens who are working for an independent trade union movement and totally independent of any political party. They come from different places of work, but the WCL fears that some may have lost their jobs since, in Cuba, persons who use their freedom of expression to express discontent and opposition to particular situations, or who take issue with the official government line, face immediate dismissal. The reasons given by the authorities for these unjustified dismissals do not correspond to reality. According to some information, blacklists are circulated containing the names of persons dismissed for reasons related to trade union activity or membership (i.e., their willingness to defend an independent trade union movement). The independent trade union movement in Cuba is new and, in view of the restrictions to which it is subjected, it is clear that it cannot function in the same way as trade union movements going back more than 100 years in some countries, with trade union officials elected by a broad social base in free and open elections. The ICESI for its part has 90 members. The names of the members of the governing board, including their identity card numbers, are clearly indicated on the application for legal recognition submitted to the Head of the Register of Associations. The Institute operates on the basis of a constituent document which clearly sets out its objectives and mandate.
608. The WCL has drawn attention to new facts which it claims constitute violations of freedom of movement of two CUTC members:
– Mr. Pedro Pablo Alvarez Ramos, President of the CUTC, applied for a visa in order to go abroad for several days. Although he met all the conditions, this was refused. In the view of the WCL, this proves that the Government of Cuba violates the principle of freedom of movement of its citizens, especially when the visa applicant is an advocate of the principles of freedom of association embodied in ILO Conventions Nos. 87 and 98.
– Mr. Vicente Escobal Ribeiro, Director of the ICESI and a member of the CUTC, also applied for an exit visa, which was granted. When he returned to Cuba, his passport was seized by the authorities but returned later. According to the WCL, the presentation of the present complaint led to a rapid resolution of this incident, but the confiscation of a Cuban citizen’s travel document to restrict his freedom of movement nevertheless constitutes a human rights violation.
C. New observations of the Government
609. In its communication of 30 April 1999, the Government replies that inquiries have shown that the allegations that have been presented are false, since there is no trade union organization called CUTC in Cuba nor any branch which the persons named in the present case claim to represent. The Government therefore requests the Committee to close this case.
610. In its communication of 10 September 1999, the Government replies to a request to indicate specifically whether the CUTC and the ICESI had presented a formal request for recognition and registration to the authorities and, if so, what the reply was. According to inquiries conducted by the Ministry of Justice, a request was submitted on 14 July 1995 to the body established under Act No. 54 of 1985 (the Act respecting associations) with a view to the inclusion in the “Register of Inscriptions” of an organization entitled the “Single Council of Cuban Workers” (CUTC). The Minister of Justice states that there is no “Register of Inscriptions” as mentioned in the request, but that there are Registers of
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Associations listing associations according to their location, which in this case could not be established. In addition, requests to establish an association have to comply with the Act respecting associations (No. 54 of 27 December 1985); the request in the present case did not comply with those provisions in that:
– the functions of the persons who make up the management board are not indicated;
– no information is given on the number of members;
– the state body, agency or service with which the organization is supposed to maintain relations is not indicated;
– the statutes which govern the organization’s internal affairs are not attached;
– the official duty stamps required by law are missing.
611. The Government adds that the headquarters address given in the document is not the same as the address given to the ILO. The Ministry of Justice considers that the document does not comply with the Act respecting associations and has filed it. Ministry statements concerning the impossibility of establishing trade unions under the terms of the Act should not be interpreted as a judgement on the legitimacy of the purposes of the request.
612. The Government adds that there is no body of workers in any enterprise, workshop, establishment or work unit which supports this organization or recognizes its authority as a trade union, elects its officials or follows its programme in everyday industrial relations. In the absence of such a necessary labour framework, it is not possible to talk of a trade union or trade union officials in this case. The Committee should therefore not spend its time considering fictitious situations that have been invented solely in order to create an image which does not reflect the reality of freedom of association in the country. There are 19 national sectoral trade unions in Cuba all of which, on the basis of decisions freely taken by their members, periodically hold congresses, adopt the statutes, regulations and decisions which they consider appropriate and establish the structures, functions, methods and styles of work which they consider most conducive to achieving their objectives, without any interference by the public authorities. The persons named by the Committee in Case No. 1961 are not trade union officials, do not lead any body of workers, have not been elected at any place of work to represent workers and do not engage in any trade union activity at any place of work.
D. The Committee’s conclusions
613. The Committee notes that the questions raised by the complainant which remain pending concern: (1) the raids of the respective residences of Mr. Pedro Pablo Alvarez Ramos, President of the Single Council of Cuban Workers (CUTC) and of Mr. Vicente Escobal Ribeiro, Director of the Cuban Institute of Independent Trade Union Studies (ICESI), searches conducted at those premises and confiscation of documents and office property by state officials; (2) failure by the authorities to respond to a request for formal recognition of the ICESI and registration of the CUTC; and (3) violations of the freedom of movement of two CUTC members, Mr. Pedro Pablo Alvarez Ramos and Mr. Vicente Escobal Ribeiro.
614. As regards the raids at the residences of Mr. Pedro Pablo Alvarez Ramos, President of the Single Council of Cuban Workers (CUTC), and of Mr. Vicente Escobal Ribeiro, Director of the Cuban Institute of Independent Trade Union Studies (ICESI), searches conducted at those premises and confiscation of documents and office property by state officials, the GB.277/9/1
Committee notes that the complainant’s and the Government’s respective versions of events remain totally contradictory. The Committee notes that the complainant in its communication of 17 December 1998 refers only to the residence of Mr. Pedro Pablo Alvarez Ramos. The Committee also notes the Government’s reply, to the effect that inquiries have not confirmed the allegations, that the address which is supposed to have been raided is still unknown and that consequently it is not possible to confirm that a raid took place. The Committee nevertheless notes the complainant’s allegation, which is not disputed by the Government, that without official recognition an organization cannot rent premises for union activities and that as a result members of civil society organizations and independent trade unions meet in their own homes or in public places. Thus, if the alleged search actually took place, it was tantamount to a search of union premises.
615. The Committee therefore recalls that the right of the inviolability of trade union premises also necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 175]. Any search of trade union premises, or of unionists’ homes, without a court order constitutes an extremely serious infringement of freedom of association [see Digest, op. cit., para. 177]. Furthermore, the 1970 resolution concerning trade union rights and their relation to civil liberties places particular emphasis on the right of protection of trade union property as being essential to the normal exercise of trade union rights. The Committee therefore requests the Government to ensure that the documents and property confiscated by state officials be returned to the CUTC and the ICESI.
616. As regards the failure on the part of the authorities to reply to the request for formal recognition of the ICESI and registration of the CUTC, the Committee notes that the CUTC submitted a request for official recognition to the Register of Associations of the Ministry of Justice but received no reply. This, according to the complainant, is tantamount to a refusal to grant recognition. The Committee also notes that the ICESI applied for legal recognition in a letter dated 8 October 1996 and addressed to the Registry. To this day, to the WCL’s knowledge, there has been no reply regarding any follow-up on this request. The Committee notes the many documents sent in support of the complaint and describing the nature, objectives and activities of the CUTC and ICESI. The Committee notes nevertheless that, as regards the Committee’s request for information on the organizations that make up the CUTC and ICESI, the WCL says only that the CUTC is made up of a group of independent trade union organizations and that the ICESI has 90 members.
617. The Committee notes that, according to the Government, inquiries by the Ministry of Justice have shown that a request was submitted on 14 July 1995 to the body established under Act No. 54 of 1985 (Act respecting associations) with a view to registration in the “Register of Inscriptions” of an organization supposedly entitled the Single Council of Cuban Workers (CUTC). The Committee notes that, according to the Minister of Justice, the request did not comply with certain provisions of the Act (number of members, deposit of statutes, absence of official duty stamps, etc.).
618. The Committee also notes that the Government reiterates its position with regard to the absence of trade union activities on the part of the persons named by the WCL, and states again that there is no body of workers in any enterprise, workshop, establishment or work unit which supports the organization in question and accepts its authority as trade union leader, elects its officials and follows its trade union programme in its everyday labour relations, and that in the absence of such a necessary labour framework, it is not possible to speak of a trade union organization or trade union leaders.
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619. In this context, the Committee draws attention to the observation formulated in 1999 by the Committee of Experts on the Application of Conventions and Recommendations concerning the application by Cuba of Convention No. 87. The observation in question concerns the need to remove the reference to the “Central Organization of Workers” from the Labour Code of 1985 (sections 15 and 16) and to Legislative Decree No. 67 of 1983 (section 61), which confer on the above Central Organization of Workers the monopoly of representing the country’s workers on government bodies. The Committee emphasizes the need to remove the reference to the “Central Organization of Workers” from labour legislation in order to ensure that all workers can freely, in law and in fact, and outside the structure established by law, establish and join trade unions of their own choosing, in accordance with Article 2 of the Convention. The Committee also notes that it has previously examined cases concerning refusals by the Government of Cuba to recognize trade union organizations [see 287th Report, Case No. 1628 (Cuba), para. 282, and 308th Report, Case No. 1805 (Cuba), para. 240].
620. The Committee is bound to note that although the CUTC was established more than four and a half years ago, the Government still refuses to recognize it, although freedom of association and the right to establish trade union organizations freely and without prior authorization are recognized under article 54 of the Cuban Constitution and the 1985 Labour Code. The Committee notes that the refusal to recognize the CUTC as a trade union within the meaning of the Labour Code or as an association within the meaning of the Act respecting associations, on the grounds that it does not conform to the definition and characteristics set out in those laws, prevents any legal recognition at all. As regards the Government’s statements to the effect that the CUTC cannot be regarded as a trade union organization, the Committee recalls that under Article 10 of Convention No. 87, the term “organization” means any workers’ or employers’ organization for furthering workers’ or employers’ interests. Article 6 of the Convention extends the right to establish an organization without prior authorization to federations and confederations of workers’ organizations. Furthermore, while noting the Government’s statements regarding the non- representative nature of the CUTC, the Committee is bound to point out that the fact that an organization has only a limited number of members does not justify refusal to grant it recognition.
621. Under these circumstances, the Committee requests the Government to ensure that the CUTC can operate freely and to see to it that the authorities refrain from any interference such as to restrict the organization’s fundamental rights. The Committee also requests the Government to ensure that the law, effectively applied, allows recognition of organizations like the CUTC. It refers this matter to the Committee of Experts on the Application of Conventions and Recommendations.
622. The Committee, noting that training is a vital aspect of the work of the CUTC, points out that the Cuban Institute of Independent Trade Union Studies (ICESI) makes a major contribution to the CUTC’s activities in this area. The Committee recalls that Article 3 of Convention No. 87 recognizes the right of workers’ organizations to organize their activities – including activities with other organizations – and the principle that the public authorities must refrain from any interference such as to restrict that right or impede the lawful exercise of it. In addition, the 1970 resolution concerning trade union rights and their relation to civil liberties places particular emphasis on freedom of expression, in particular the freedom to seek, receive and impart information and ideas by any means of expression, since this is vital for the normal exercise of trade union rights. The Committee therefore considers that, in this specific case, the authorities should formally recognize the ICESI so that the CUTC can carry on its activities without hindrance. GB.277/9/1
623. Moreover, the Committee notes in this case facts affecting the right to free movement of one member of the CUTC. The Committee notes that, according to the complainant, Mr. Pedro Pablo Alvarez Ramos applied for a visa with a view to spending several days abroad. Although he met all the conditions the authorities turned down his application. The Committee also notes that Mr. Vicente Escobal Ribeiro had his passport confiscated on his return from abroad. The Committee notes that the Government has not denied any of these allegations. It also notes that the complainant refers to a fear of reprisals if it exercises its right to freedom of expression and to information according to which there are blacklists of persons who advocate an independent trade union movement. The Government has made no comments in this regard.
624. The Committee is therefore bound to deplore these attacks on the fundamental rights of trade unionists. It recalls that the rights of workers’ and employers’ organizations cannot be exercised in a climate of intimidation and that it is the responsibility of governments to ensure that those rights are respected.
The Committee’s recommendations
625. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) Noting that, although the CUTC was established more than four and a half years ago, the Government still refuses to recognize it, the Committee requests the Government to ensure that the CUTC can operate freely and that the authorities refrain from interfering in such a way as to restrict the organization’s fundamental rights. The Committee requests the Government to ensure that the documents and office material confiscated from the CUTC and the ICESI by state agents is returned to these organizations.
(b) The Committee also requests the Government to ensure that the law, effectively applied, allows recognition of organizations such as the CUTC, and refers this matter to the Committee of Experts on the Application of Conventions and Recommendations.
(c) The Committee considers that in this specific case the authorities should recognize the Cuban Institute of Independent Trade Union Studies (ICESI).
(d) Noting the facts affecting the right to free movement of one member of the CUTC and the absence of a reply from the Government concerning the information provided by the complainant regarding restrictions of freedom of expression and the existence of blacklists, the Committee is bound to regret these attacks on the fundamental rights of trade unionists and recalls that it is the responsibility of governments to guarantee respect for those rights.
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CASE NO. 2010
INTERIM REPORT
Complaint against the Government of Ecuador presented by the International Confederation of Free Trade Unions (ICFTU)
Allegations: Murder of a trade union official, threats against another union official and deaths during demonstrations
626. The Committee examined this case at its meeting in June 1999 and presented an interim report [see 316th Report of the Committee, paras. 448-464, approved by the Governing Body at its 275th Session in June 1999]. The Government’s observations were received subsequently in communications dated 28 June and 3 November 1999.
627. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. Previous examination of the case
628. In its previous examination of the case the Committee made the following recommendations concerning the allegations which remained pending [see 316th Report, para. 464]:
Regretting deeply the murder of the trade union official Saúl Cañar Pauta, the Committee requests the Government to keep it informed of developments in the judicial inquiries and trusts that those guilty of the murder will be quickly identified and punished.
The Committee requests the Government to ensure that judicial investigations are commenced and to provide it with the texts of the judgements which will be issued concerning the deaths resulting from the events of 1 October 1998.
The Committee urges the Government to communicate immediately its observations on the allegations to which it has failed to reply, i.e.: (1) the campaign to discredit and intimidate the president of the CEOSL, threatened with legal proceedings by the Minister of the Interior because of statements he made to the national press on the eve of the abovementioned strike; and (2) the training of 38 Ecuadorian nationals in combat practices by a well-known Colombian paramilitary leader with a view to launching an offensive against labour activists, according to information in a magazine.
B. The Government’s reply
629. In its communications of 28 June and 3 November 1999, the Government states that the complainant’s allegation concerning the training of 38 Ecuadorian nationals by paramilitary forces is based solely on rumours for which no supporting evidence has been provided, and adds that it will never allow acts of violence. The Government also categorically denies that the former Minister of the Interior attempted to discredit, intimidate or threaten the president of the CEOSL by threatening legal action against him following his statements on the eve of a national strike, and maintains that the Minister had GB.277/9/1
confined herself to stating in general terms that legal proceedings would be initiated against persons who violated the Constitution. The Government provides a video recording of the former Minister’s statements. As regards the legal proceedings in connection with the death of the trade union official Saúl Cañar Pauta, the Government indicates that the Ministry of the Interior reiterates its decision to proceed with the criminal investigation until a final ruling is given and will bring charges against all the persons involved. The Government also supplies a copy of the results of the inquiries already completed.
630. As regards the Committee’s request concerning the deaths during demonstrations held on 1 October 1998, the Government indicates that the police officer José Geover Bowen died after entering an area where a group of demonstrators was committing acts of violence on the day of the national strike. A grenade exploded in his hands, wounding other police officers. Mr. Jorge Aníbal Mena, who was not involved in the strike, died after being hit by a stray bullet fired from a long distance (about 80 metres). Another victim, Mr. Javier Bone Roa, was killed instantly by a gunshot while taking part in violent demonstrations in which the demonstrators used firearms against the forces of law and order. The person or persons responsible for his death have not so far been identified. All these cases have been brought before the courts. The Government indicates that in all cases, the bullets had been fired from some distance, were in the descending phase of a parabolic trajectory, and were not aimed at a particular target; they were not connected with the activities of the police during the demonstration.
C. The Committee’s conclusions
631. The Committee takes note of the Government’s statements categorically denying that the former Minister attempted to discredit or intimidate the president of the CEOSL, and notes that it has supplied a video recording of its statements. The Committee also notes that, as regards the allegations regarding training by paramilitaries of 38 Ecuadorian nationals with a view to launching an attack on social activists, the Government states that this is based on rumours which, it points out, have not been substantiated by the complainant. The Committee invites the complainant to provide additional information in this respect.
632. At the same time, the Committee notes that, according to the Government, the cases concerning the death of the police officer José Geover Bowen and the deaths of other persons during the demonstrations held in connection with the general strike of 1 October 1998 (Mr. Jorge Aníbal Mena and Mr. Javier Bone Roa) have been brought before the courts. The Committee deeply regrets these deaths and requests the Government to inform it of the outcome of the judicial inquiry.
633. As regards developments in the investigations into the death of the trade union official Saúl Cañar Pauta, the Committee notes the findings which the Government has passed on to the Committee. The Committee requests the Government to keep it informed of any developments in the judicial inquiry and to inform it of the results as soon as they are given.
The Committee’s recommendations
634. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) The Committee invites the complainant to provide additional information concerning the allegation of training by paramilitaries of 38 Ecuadorian nationals with a view to launching an attack on social activists.
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(b) The Committee requests the Government to keep it informed of any progress made in the judicial inquiry into the death of the trade union official Mr. Saúl Cañar Pauta and to inform it of the results as soon as they are given.
(c) The Committee requests the Government to inform it of the outcome of the investigations into the deaths of Mr. José Geover Bowen (police officer) and of Mr. Jorge Aníbal Mena and Mr. Javier Bone Roa (demonstrators) during the demonstrations held in connection with the general strike of 1 October 1998.
CASE NO. 2040
DEFINITIVE REPORT
Complaint against the Government of Spain presented by the Basque Police Force Union (Ertzainen Nazional Elkartasuna) (ERNE)
Allegations: Non-compliance with legislation regarding the appointment of union shop stewards
635. The complaint is contained in a communication dated 26 July 1999 from the Basque Police Force Union (Ertzainen Nazional Elkartasuna) (ERNE). The Government sent its observations in a communication dated 23 December 1999.
636. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
637. In its communication of 26 July 1999, the ERNE trade union alleges failure to apply article 100.1 of the Basque Police Force Act No. 4/1992, which stipulates the following:
Article 100.1 Trade union organizations may appoint shop stewards for the union sections which, wherever appropriate, they establish. Without prejudice to this right and for the sole purpose of the application of the guarantees and rights laid down in article 101 of this Act, trade union organizations having appointed representatives in accordance with the provisions of the above article shall have a number of stewards equivalent to two for every 250 officials (or fraction thereof) entitled to vote up to and including a limit of 5,000 and, above that limit, one further steward for every 200 officials (or fraction thereof). The stewards shall be apportioned to each one of the trade union organizations according to the membership they represent, in observance of the provisions of this article and the regulations which may be issued on the basis thereof.
638. According to the complainant organization, more than seven years have elapsed since the Basque Parliament passed the Basque Police Force Act, three ballots to elect the union representatives of Basque police officers have been held without Chapter VIII of the above-mentioned Act having been complied with; that text lists the machinery and rights GB.277/9/1
regarding representation and participation in determining working conditions. The complainant organization makes specific reference to the appointment of stewards for union sections, as addressed by article 100.1, of the Basque Police Force Act, resulting in half of the representation rights of ERNE having been disregarded throughout this period, without any prospect of a solution in the near future or any identifiable interest within the Basque Department of the Interior in ending the said infringement of fundamental rights. Accordingly, the provisions of an Act passed by the Basque Parliament, and designed to protect freedom of association and the rights enshrined in legislation, are not only disregarded but are taken as the pretext for a breach of the very rights that the Act is designed to protect. In fact, the so-called mixed system has served solely as an instrument whose effect has been to deny half of the rights accruing to ERNE as a trade union organization in the Basque Police Force.
639. The complainant organization points out that on various occasions it has called upon the representatives of the Basque Department of the Interior to issue temporary regulations regarding the appointment of shop stewards, as provided for by article 100 of the Basque Police Force Act No. 4/1992, and that the Basque Department of the Interior has always refused to opt for that solution.
640. The complainant organization indicates that, following the establishment of the committee foreseen in article 100 of the Basque Police Force Act No. 4/1992, the Chief Legal Officer of the Data Protection Agency issued a legal opinion on 17 May 1999, regarding the submission of a “list of all career officials in active or auxiliary service, temporary officials and probationary officials having passed their basic training and undergoing practical training”, members of ERNE. After its legal examination of the matter, the Legal Office arrives at the following conclusions: (1) it is inadmissible for the trade union central organization to disclose the information regarding the identity of its members; and (2) the disclosure of such information would be admissible in the event of data dissociation as provided for in article 3(f) of the LORTAD Act, without a subsequent examination of the information being admissible if it is no longer subject to this dissociation procedure. Amongst the legal considerations, the Legal Office states the following:
… judgment No. 292/1993 handed down by the Constitutional Tribunal on 18 October unambiguously indicated that “membership of a trade union is an ideological choice protected by article 16 of the Spanish Constitution which guarantees the citizen’s right not to declare such status” and that “the disclosure of trade union membership is the personal and exclusive right of the worker, which shall be respected both by the employer and the relevant trade union organization”. Consequently, in the case under review, such data enjoy special protection and “may only be computer processed with the explicit written consent of the concerned party” (article 7.2 of LORTAD), and therefore its transmission is inadmissible even though it may be deduced from legal provisions; the provisions of article 11.2(a) of LORTAD do not apply in this case. In the Legal Office’s opinion, article 100.1 of Basque Parliamentary Act No. 4/1992 stipulates that the representation of different trade union organizations which may be established is organized “on the basis of the membership they represent” and therefore “if no appropriate reform of the above Act is undertaken, it will not be possible to establish the aforementioned trade union representative bodies”.
641. In the complainant organization’s opinion, this intentional blockage (application of the Act rendered impossible and refusal to reform it) restricts and infringes basic freedom of association and the right to collective bargaining as protected by the ILO.
642. Moreover, the complainant organization attaches an agreement signed on 26 April 1996 between the ERNE, CC.OO. and UGT trade union sections in the Basque Police Force
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(Ertzaintza) for the purpose of temporarily regulating the appointment of the union stewards addressed by article 100 of the Basque Police Force Act No. 4/1992 as follows:
The purpose of the present agreement is to develop trade union rights and promote the exercise of trade union activities within the Ertzaintza on the basis of the provision contained in article 101.3 of the Basque Police Force Act.
More than three years have now elapsed since the Basque Parliament passed the Police Force Act, two ballots were held in 1993 and 1994 to elect officials’ trade union representatives; today, Chapter VII of the above Act which lists the machinery and rights regarding representation and participation in determining working conditions is not being implemented in its entirety.
Thus, the provision contained in article 100 regarding the appointment of stewards for trade union sections of organizations having elected representatives remains unfulfilled on account of difficulties in the implementation of the mechanism foreseen by the Act.
Without prejudice to the urgent need to take definitive action to resolve the existing problems, it is necessary to call upon the Department of the Interior to issue temporary regulations permitting the signatory organizations of this agreement to appoint their shop stewards for the purpose of setting up the union sections foreseen by the Act.
Given that, to date, the only formally available means of measurement of representative status formally available has been the results obtained by the various organizations in the elections of representatives, as held on 23 December 1994, we call for temporary regulations to apply to the aforementioned appointment of shop stewards and for the recognition of our rights under the same article 100 and for the representativity criterion (election results) to be taken as the basis for these temporary regulations.
We equally understand that the effects of such temporary provisions, that we favour and urgently call for, must remain in force until, by virtue of the Basque Police Force Act, the signatory trade unions of the present agreement are in a position to appoint the trade union stewards for which article 100 of the said Act No. 4/1992 makes provision or until such time as the obstacles to the effective application of the representativity rules and the administrative action, formally foreseen by the Police Act, is initiated making the appointment of stewards for the trade union sections possible.
643. In a letter dated 9 February 1999 (attached by the complainant) addressed to the Basque Minister of the Interior, the Ertzaintza unions, ERNE, CC.OO. and UGT, as part of the process to develop the provisions of article 100 of the Basque Police Force Act and Decree No. 50/1993 (16 March), state that:
They consider that compliance with the contents of the said article of the BPFA, and of the Decree based thereupon, encroaches upon fundamental rights of workers as enshrined in the Spanish Constitution.
In accordance with law and the connected jurisprudence, the members of the relevant committee appointed by the Industrial Relations Board, upon the proposal of the Minister of the Interior, do not possess the authority to demand the transmission of computerized personal data regarding union membership; equally, the trade union organizations are not entitled to disclose such information to third parties without the express consent of those concerned. In the light of the above, it is not possible to comply with the requirements of article 37.1 of the aforementioned Decree without violating members’ rights. The hypothetical refusal by one member regarding the disclosure of various personal GB.277/9/1
status data (such as national identity card and, where appropriate, the current account used for the transfer of membership dues) is sufficient to invalidate the entire process inasmuch as any subsequent decision on the apportioning and appointment of stewards would not correspond to actual membership. Therefore, it is evident to us that there is a major incompatibility between our affiliation to the system and members’ refusal to give express authorization to reveal their status and/or other personal data. That it is not possible for the trade union organizations to meet the requirements of article 100 of the BPFA and Decree No. 50/1993 (16 March) constitutes very serious prejudice to the said organizations and their representatives and it is attributable solely to the procedures laid down by the Police Act; it is proposed that those procedures be replaced by the apportioning of stewards on the basis of results obtained in past union elections and that steps be taken aimed at revising the Act with a view to incorporating electoral and representation procedures founded solely upon universal suffrage, in line with the procedures applied in all other public administrations.
B. The Government’s reply
644. In its letter of 23 December 1999, the Government states that the Basque Statute of Autonomy, adopted by virtue of Constitutional Act No. 3/1979 (18 December), stipulates, in article 17, that: “… the Basque institutions, in the form laid down in the present Statute, shall comprise the Autonomous Police Force to protect persons and property and uphold public order within the autonomous territory, whilst the responsibility for extra- and supra- community police services shall be reserved without exception for State security forces and corps …”. The same article foresees the existence of a Security Commission for the coordination between the Autonomous Police Force and the State Security Corps and Forces. The Ertzaintza, the Autonomous Police Force, set up by the Basque Government on the basis of the provisions of the above article, was first deployed in 1982 and reinforced in 1995 when it took on the full responsibilities – throughout the Autonomous Community – assigned to it by the Basque Security Commission, in accordance with the Delimitation of Services Agreements between the Autonomous Police Force and the State Security Forces and Corps; certain responsibilities are exclusive, such as the security of the public, and others are shared, such as criminal investigation. The Autonomous Police Force reports to the Ministry of Security which is an integral part of the Department of the Interior of the Basque Government. Consequently, it is subordinated solely to the Basque Government as stipulated by the aforementioned article 17, point 2: “The supreme command of the Basque Autonomous Police Force lies with the Basque Government …”. Hence, the Basque Parliament, at its session of 5 April 1990, passed a resolution stating that: “the Autonomous Police Force shall be governed by the Basque institutions which, consequently, may administrate it as a body for the protection of persons and property and for maintaining public security on Basque territory, …”. The same resolution describes it as a regular and general police force.
645. The Government adds that, on 17 July 1992, the Basque Parliament, by virtue of Act No. 4/1992, passed the Basque Police Force Act which, inter alia, contains the general provisions regarding the action of the Basque Police Force, extensive regulations regarding status, trade union rights and the right to participate in matters of interest to it. Article 2 indicates that the Act shall apply to police corps subordinated to the Administration of the Autonomous Community and article 5 specifies that under the supreme command of the Basque Government, exercised by the Lehendakari, the Department of the Interior acts as the senior directorate of the Autonomous Police Corps or Ertzaintza.
646. As is clear, the Government continues, the Autonomous Police Force is subordinated exclusively to the Basque Government and governed by the abovementioned Act
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No. 4/1992 passed by the Basque Parliament. Moreover, Constitutional Act No. 2/1986 (13 March) regarding security forces and corps, passed by the National Parliament (Cortes Generales), does not even apply to it, given that, in the final introductory provision, it is specified that that Act shall not apply to the competencies assigned by article 17 of the Statute of Autonomy to Basque institutions, with the exception of articles 5, 6, 7 and 8. These articles refer to the basic principles of action and common statutory provisions of a general nature, which are applicable to any democratic police force. The principles are based on the “Declaration on the Police” of the Council of Europe and the “Code of conduct for law enforcement officials” adopted by the United Nations General Assembly. Accordingly, the complaint presented to the ILO by the ERNE union of the Basque Autonomous Police Force, with reference to a violation of trade union rights, is an internal matter concerning that autonomous police force.
647. The Government attaches a report on the complaint presented by the Human Resources Directorate of the Basque Department of the Interior; this contains several appendices with documents, legal and administrative texts in support of the statements made in the report.
648. The Basque Department of the Interior declares that the Basque Police Force Act No. 4/1992 (17 July), in articles 99 and 100 regarding “representation and participation in determining working conditions”, contains a dual form of trade union representation (the so-called mixed system of union representation in the Ertzaintza) which combines, on the one hand, the appointment of officials’ representatives through “the ballot box” with proportional representation on the basis of the results obtained by each trade union in the relevant election exercise; and, on the other hand, the apportioning of stewards to each of the unions in proportion to the membership they represent and subject to the provisions of the said article 100 of the BPFA as well as to the regulations which may be issued on the basis thereof. In this regard, article 100, subsections 2 to 6, reads:
100.2 The apportioning of stewards and their appointment by trade union organizations shall be completed within thirty days following the public announcement of the results of the elections for representatives.
100.3 The number of members of each union organization shall be determined in accordance with the conditions prevailing on the date upon which the electoral process commences, with account being taken only of career officials in active or auxiliary service, temporary officials and probationary officials having passed their basic training and undergoing practical training. A committee of three impartial members with proven general competence and appointed by the Minister of the Interior upon proposal by the Industrial Relations Board shall conduct the necessary verification and apportioning of stewards to the corresponding trade union organizations.
100.4 For the purposes addressed in the subsection above, the trade union organizations and the Department of the Interior shall supply the committee with the data or documentary evidence requested of them. Both the members of the committee and staff, which, where appropriate, assist them in the exercise of their functions, shall be subject to professional secrecy with regard to the data to which they may have access.
100.5 By means of the proportional representation system, the corresponding number of stewards will be apportioned to each trade union in accordance with the quotient resulting from dividing the total number of members by the number of posts to be filled. The remaining posts shall, where appropriate, be apportioned to the union organizations, in descending order, in accordance with the remainder of members of each organization. GB.277/9/1
100.6 The appointment of stewards apportioned to them shall be the prerogative of each union organization, but shall be made from among corps career officials in active or auxiliary service, temporary officials and probationary officials having passed their basic training and undergoing practical training.
Hence, this is a system which combines the criterion of consultation through the ballot box with representation based on the membership numbers represented by each union organization.
649. The final text of Act No. 4/1992 emerged following debate and negotiation not only in the Basque Parliament but also with the trade union centrals which were representative at the time within the Ertzaintza (Eusko Langileen Alkartasuna, Ertzainen Nazional Elkartasuna, Comisiones Obreras (CC.OO.) and Unión General de Trabajadores (UGT)). Furthermore, at that time the constitutionality of the Basque Police Force Act was not challenged despite the fact that the Act had previously been the subject of constitutionality proceedings brought by the People’s Party (Partido Popular) before the Constitutional Tribunal.
650. Moreover, article 100 of the BPFA was elaborated further in the form of Decree No. 50/1993 (16 March); Chapter VIII of that text is entitled “Appointment of shop stewards” and contains, most specifically, the following:
1. Only trade union organizations, federations and confederations having won representatives in ballots shall be able to appoint stewards on the basis of their membership.
2. The proportional representation system apportions to organizations, federations or confederations a number of stewards based on the membership they represent.
In this way, the number of corresponding stewards shall be determined by the quotient resulting from dividing the total number of officials affiliated to all of the organizations, federations and confederations having won representatives by the number of stewards’ posts to be filled, with the apportioning of the remaining posts to the organizations, federations and confederations in descending order in accordance with the remainder of the members of each one of them.
3. The day following the announcement of the election results, the Minister of the Interior, upon the proposal of the Industrial Relations Board, shall, by order published in the Ertzaintza Official Bulletin, appoint three persons responsible for verifying the membership of these organizations, federations and confederations and for apportioning the corresponding number of stewards to each one of them.
4. This committee of three persons, appointed by the Minister of the Interior, shall be set up within three days of its members’ appointment.
5. The Electoral Commission shall submit to the committee a certified copy of the electoral roll which shall act as a bona fide document for the purpose of ascertaining that those listed therein are Ertzaintza officials meeting the requirements to be counted as members.
6. For the determination of their membership levels, each trade union organization, federation or confederation having won representatives shall supply the committee, within five days of the committee being set up, with a list of all their members who are career officials in active or auxiliary service, temporary officials and probationary officials having passed their basic training and undergoing practical training.
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…
8. The committee shall conduct whatever verifications it considers appropriate of the documentation supplied to it and shall concentrate its work principally on ascertaining that persons listed as members meet the necessary requirements.
…
10. For the purpose of conducting its duties and guaranteeing confidentiality in its work, the committee may, by agreement with the trade union organizations, federations and confederations, visit their respective headquarters.
11. The committee, in the light of the documentation mentioned in the article above, shall announce in the Ertzaintza Official Bulletin, within twenty days of the publication of the election results, the number of stewards apportioned to each organization, federation and confederation.
12. Upon notification – within thirty days of the announcement of the election results – to the trade union organizations, federations and confederations of the numbers of stewards apportioned to them by the committee, the Ministry of Security shall be informed of the appointment and identity of the stewards whose names shall be listed on the electoral roll.
651. It should be emphasized that article 37 of the Decree contains specific texts on issues addressed by the Act and requiring further elaboration in respect of the precautions initially foreseen to safeguard the confidentiality of the data to be handled.
652. The Basque Department of the Interior draws attention to the negotiations which took place regarding Decree No. 50/1993 between the representatives of the public administration and the trade unions. In that connection, it attaches a set of documents indicating the manner of transmission to the trade unions of the various proposed decrees to which the unions responded in writing, with some of their proposals being incorporated.
653. The Basque Department of the Interior proceeds to explain how and why the effectiveness of the legal provisions and regulations has been limited by the Industrial Relations Board. As can be inferred from article 100.3 in fine of Act No. 4/1992 and article 34 of Decree No. 50/1993, it is incumbent upon the Industrial Relations Board to propose to the Minister of the Interior the three persons responsible for verifying trade union membership and apportioning the number of stewards due to each union. Hence, its role is essential for the development and effectiveness of the representation system based on membership in Ertzaintza. The Industrial Relations Board is comprised of seven members nominated by trade unions and seven by employers, subsequently appointed by the Lehendakari, and who are joined by the Chairperson and Secretary General who have no voting rights (article 4.1 of the Industrial Relations Board Act). Moreover, by virtue of the revised Industrial Relations Board Act, decisions must be adopted by an absolute majority within each component of the Board.
654. Whenever the Board is reconstituted, the trade unions which at that time have most representative status and those having obtained 10 per cent or more in the elections for staff representatives in Basque Autonomous Community enterprises and public administrations are entitled to appoint representatives in proportion to their representative status, with at least one post being guaranteed to each of them (article 4.3, IRBA); by virtue of the revised IRBA, the vote of each trade union appointee is weighted as a function of the representative status in the elections. Whereas, today, agreements must be GB.277/9/1
adopted by an absolute majority within each of the Board’s components, until 1997 a qualified absolute majority of 60 per cent was required.
655. The Basque Department of the Interior points out that, on 3 June 1993, the Minister of the Interior sent a second letter to the Chairperson of the IRB, recalling the legal requirement to submit proposals for the appointment of the three committee members to verify union membership. This letter emphasizes the concern held by the Department of the Interior on account of a communication dated 24 May 1993 (in which the IRB reports that, when on the first occasion it proposed to nominate the three members of the verification committee, it decided not to place the item on the plenary agenda for lack of agreement); there were also attempts by certain union organizations to hinder compliance with the obligation incumbent on the IRB.
656. The IRB plenary decided on 4 June to resume its meeting on 9 June 1993 in pursuance of article 100.3 of the BPFA. The meeting was held. The record of the plenary of 9 June 1993 leaves no doubts regarding the obstacles erected by the CC.OO. and UGT unions in efforts to prevent the IRB plenary from nominating the three committee members. Not only did the employers’ representatives refrain from hindering the nominations, but they also proposed to choose, as an election procedure, the drawing of lots between the components of the Preco II college of arbiters. In the union group, LAB abstained throughout, ELA was in agreement with the drawing of lots, and the CC.OO. and UGT blocking any agreement; each used different arguments: CC.OO. rejected the very system of representation in proportion to membership and refused to make any nomination of a short list whereas the UGT maintained that the union representatives had to reach a unanimous agreement. On this basis it was ultimately ascertained that there was no sufficient degree of agreement for the IRB to nominate the three members of the committee referred to in article 100.3 of the BPFA and, consequently, no proposals were presented. The reason for the failure to agree resides in the fact that the positions adopted by CC.OO. and UGT blocked the 60 per cent qualified majority which, at that time, the IRBA required of each component represented on the Board for the valid adoption of agreements. The union section and its representative status in percentage terms at the time of the said meeting, i.e. 9 June 1993, was: ELA, three members, 42.86 per cent; UGT, two members, 28.57 per cent; CC.OO., one member, 14.29 per cent; and LAB, one member, 14.29 per cent. This situation remained unchanged until 1997. The new regulations introduced by the Industrial Relations Board Act No. 11/1997 (27 June) prompted the Minister of the Interior, on 11 September 1997, to forward a letter to the Chairperson of the IRB, requesting the nomination of three regular and three deputy members to form the committee responsible for the verification of union membership.
657. On 23 October 1997, the Chairperson of the IRB notified the Department of the Interior that, at the Board’s plenary sitting of 23 October, a majority agreement had been adopted to nominate the deans of the bar associations of each of the constituent territories of the Basque Autonomous Community.
658. At the meeting of 23 October 1997, the position taken by the employers’ representatives together with the ELA and LAB unions, in combination with the change in the law which requires a simple absolute majority in each of the Board’s components, prevented the UGT and CC.OO., which maintained the earlier obstacles at the meeting, from blocking the appointment of the three members. The unions’ representative status in percentage terms on 23 October 1997 was: ELA, 45.21 per cent; UGT 18.51 per cent; CC.OO., 18.89 per cent; and LAB, 17.39 per cent. In the elections conducted in 1998, the relevant percentages were as follows:
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– ELA: 31.66 per cent
– ERNE: 50 per cent
– CC.OO.: 13.33 per cent
– UGT: 5 per cent
659. On 4 December 1998, the Minister of the Interior sent a letter to the Chairperson of the IRB, requesting the IRB to nominate the three members of the union membership verification committee; this request was repeated by the present Basque Minister of the Interior on 18 January 1999. The Chairperson of the IRB informed the Minister of the Interior that the IRB plenary, at its sitting of 15 January 1999, had by majority adopted an agreement to nominate the deans of the bar associations of each of the three constituent territories of the Basque Autonomous Community. Consequently, the Order dated 29 January 1999, issued by the Minister of the Interior, appointed, upon proposal by the Industrial Relations Board, the deans of the bar associations of each of the three territories of the Basque Autonomous Community as members of the committee responsible for verifying the trade unions’ membership and publishing the respective numbers of stewards apportioned to each organization.
660. Nevertheless, it is clear that the obstructionism of the UGT and CC.OO. was not limited to the events described above; by bringing court action, they attempted to avoid the application of the membership system; this legal action approach was deployed as follows:
– The legal counsel of CC.OO. lodged an administrative appeal on 31 March 1993. It sought the full annulment of articles 32 to 38 of Decree No. 50/1993 (16 March) by a declaration to the effect that those provisions ran counter to articles 14, 18.1 and 28.1 of the Constitution. The Administrative Appeal Chamber of the Basque High Court of Justice, by writ of 11 May 1993, decided not to accede to the adoption of the precautionary measures called for in the first preambular paragraph of the appeal. Subsequently, as a consequence of CC.OO.’s withdrawal of the initiated appeal, this case No. 1100/93 was closed by a writ on 9 March 1994.
– The legal counsel of the UGT filed a similar appeal before the same judicial body on 28 April 1995, seeking, above and beyond a declaration that articles 5.3, 6, 7, 8 and 9 of Decree No. 50/1993 were unlawful, the repeal of articles 12 and 33 to 38 of the same Decree. The Administrative Appeal Chamber’s ruling on case No. 1277/93, 27 June 1996 (No. 420/96), threw out the UGT appeal. The ruling reads:
The challenged provisions establish a procedure for verifying the membership levels of each trade union for the purpose of determining the shop stewards due to them; it consists of the following: the Minister of the Interior appoints, upon proposals from the Industrial Relations Board, a committee comprising three members appointed to the said task. In accordance with the provisions of article 100.3 and 4 of the Basque Police Force Act, the committee must be comprised of impartial persons of proven competence, who are subject to professional secrecy in respect of the information to which they may have access.
The Chamber considers that these regulations offer sufficient guarantees of respect for article 16.2 of the Constitution, given that, on the one hand, the committee that verifies the membership level of each trade union must be made up of impartial persons of proven competence, who are subject to professional secrecy in respect of the information to which they may have access. GB.277/9/1
The said committee verifies the membership level of every trade union and must be made up of impartial persons whose nomination is not a prerogative of the Basque Minister of the Interior who shall adhere to the proposals submitted by the Industrial Relations Board and, moreover, the committee members are bound by professional secrecy.
Consequently, the personal union membership data do not have to be communicated either to the administration or third parties.
Finally, we draw attention to the fact that this action is based upon arguments which differ from those reviewed in the verdict of 18 October 1993 of the Constitutional Tribunal, given that, on the basis of the above- mentioned safeguards, the enterprise (Basque Administration) can have no knowledge of the membership data.
In the light of the foregoing conclusions, this appeal shall be thrown out.
661. A last instance appeal was lodged against this ruling on 9 October 1996 and it is at present pending before the Supreme Tribunal.
662. The representatives of ERNE, CC.OO. and UGT have repeatedly refused to supply the lawfully established committee with membership data and, in this way, have impeded the application of article 100 of Act No. 4/1992 and article 37 of Decree No. 50/1993. This persistent position has been publicly declared through the media and was communicated to the present Department of the Interior in a letter sent by the representatives of these three trade unions which endeavour to invoke two reports of the Data Protection Agency.
663. With regard to the Basque Public Administration’s conduct in respect of the matter which is the subject of the complaint, the following should be emphasized:
– The representatives of the Basque Administration held negotiations on the Basque Police Force Bill with the trade union central organizations which were representative at that time, namely CC.OO., UGT, ERNE and ELA, and achieved agreements leading to the final text of the said Bill, with the incorporation of the Ertzaintza union representation system in the agreements signed with the three aforementioned trade unions. Similarly, Decree No. 50/1993, which elaborated upon certain aspects of Basque Police Force Act No. 4/1992 (16 March), was also submitted for discussion and all of the trade union centrals’ proposed amendments, some of which were incorporated into the final text.
– Since the entry into force of Act No. 4/1992 and Decree No. 50/1993, the Administration has scrupulously complied with the obligations ensuing from both texts, by promptly communicating in the due manner the request to the Industrial Relations Board for nominations of three members of the union membership verification committee.
– The Administration’s action was not limited to fulfilling these obligations: it endeavoured to overcome obstacles and find solutions in the face of the arguments presented by some trade unions and it managed to propose, in the Ertzaintza Council, alternative solutions which ultimately, however, did not prosper.
– The legal counsel of the Basque Public Administration opposed the court action brought by the CC.OO. and UGT unions against the representation system, based on membership, and its various aspects; it secured court rulings in favour of the administration’s case and which confirmed the lawfulness of the relevant parts of Decree No. 50/93.
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– As of 1995, the administration’s representatives in the Department of the Interior granted the unions a number of hours to be devoted to trade union activities; these exceed what would result from the mere calculation of time to which they would be entitled by virtue of their status as an elected representative. Hence, it has, in various ways, facilitated the application of the membership representation system, by ensuring exercise of one of the rights recognized by this system and the aforementioned legal texts, namely the entitlement to a number of hours for union activity.
664. In sum, it has not been possible to apply the representation system based on membership, as contained both in the Act and the Decree, on account of a blockage, between 1993 and 1997, in the Industrial Relations Board – which the above texts designate as the body responsible for nominating the three members of the committee called upon to verify union membership; the blockage was provoked by the UGT and CC.OO. unions which have minority representation in the Ertzaintza. Whereas in 1997 and 1999 the Industrial Relations Board was able to present the same proposals to appoint a list of persons to the said committee, namely the three deans of the bar associations of Araba, Guipúzcoa and Biscay, all of which became possible following the change in the law regarding the majority required for an agreement in the IRB – and despite the renewed negative vote by CC.OO. and UGT – it is clear that the applicability of the system of stewards in proportion to membership is proving fruitless, given the repeated refusal since 1997 by the UGT, CC.OO. and ERNE union representatives to supply membership data to the committee which has been lawfully nominated, appointed and set up for the verification of membership and the apportioning to each trade union of its respective stewards, in accordance with the system lawfully established. Similarly, the court rulings handed down to date have rejected the action brought by the UGT and CC.OO. and have confirmed the lawfulness of the relevant texts.
665. Finally, mention should be made, in conjunction with the various court rulings, of two verdicts handed down by the Constitutional Tribunal of 18 October 1993 and 22 July 1999, respectively. The former, quoted by ERNE in its communication to the ILO, was invoked by the judge for the purpose of throwing out the UGT appeal lodged with the Administrative Appeal Chamber of the Basque High Court of Justice. The premise of the Constitutional Tribunal’s verdict of 18 October 1993 is different from that considered by ourselves and the UGT in its appeal, given that whereas, in the former case, the employers would have access to membership data, in this instance such data would not be available to the Basque Administration, under application of the relevant precautions.
666. In its verdict of 22 July 1999, the Constitutional Tribunal draws attention to two paragraphs of its legal preamble (No. 6 in fine) which we consider as definitive and which state the following:
We have already indicated that the application of the accreditation machinery and supervision of trade union membership, with regard to a trade union section maintaining that it may not reveal its members’ names, certainly presupposed, for the sake of safeguarding the relevant fundamental rights, the possibility to resort to union accreditation methods or machinery different from those utilized by the remaining trade unions in the enterprise and which guarantee confidentiality of union membership. At the same time, however, it is not clear that the LAB union section offered the enterprise any membership accreditation procedure which was different from the one followed by the remaining union centrals and which safeguarded the ideological freedom of its members (which is neither impossible nor excessively difficult), and we have already indicated that the additional trade union rights and, hence, the right invoked in this instance, shall be exercised within the framework established by GB.277/9/1
the legal texts or agreements recognizing it (Constitutional Tribunal Verdict 61/1989).
Given the total lack of action on the part of the appellants and representatives of the LAB union section to comply with the established requirements with a view to exercising the trade union rights in question, it may not be concluded that the employer’s request to the LAB union section to supply, in accordance with the Agreement, a list of members’ names – the procedure followed by the remaining union sections in the enterprise – is detrimental to its freedom of association by imposing upon it a form of conduct contrary to the ideological freedom of its members, as claimed by the appellants.
Consequently, the highest judicial body states that to offer – in this instance to the enterprise – a membership accreditation procedure which safeguards the ideological freedom of its members is neither impossible nor excessively difficult and, furthermore, that the right being claimed shall be exercised within the framework established by the legal texts or agreements recognizing it. Furthermore, the request made to this trade union to supply a list of members, in compliance with the agreement, is not judged by the Constitutional Tribunal to run counter to ideological freedom. The procedure contained in Act No. 4/1992 and the Decree which elaborates thereupon constitutes even less of an encroachment upon ideological freedom.
C. The Committee’s conclusions
667. The Committee observes that in the present complaint, the complainant organization alleges non-compliance with article 100.1 of the Basque Police Force Act No. 4/1992, with regard to the appointment of shop stewards for the trade union sections set up within the Basque Police Force. The complainant draws attention to the fact that the Chief Legal Officer of the Data Protection Agency raises objections to the submission of a list of union organizations’ members without the written consent of those concerned; in the Chief Legal Officer’s opinion, it will not be possible (unless data dissociation takes place in the form laid down by the Personal Data Protection Act) to establish the union representative bodies until a reform is conducted of the Basque Police Force Act. According to the complainant organization, the Basque Department of the Interior has refused any temporary regulation regarding the appointment of union stewards and, in the complainant’s opinion, the fact that it is not possible to apply the Act, together with the refusal to reform it, infringes the right to collective bargaining. In the documents attached by the complainant, it and two other unions make reference to legal obstacles to the application of the texts regarding the steward appointment procedures: that it is not possible to pass on computerized personal data on union membership without encroaching upon members’ constitutional rights as well as the refusal by members to disclose their status; moreover, these organizations indicate that their members reject the representation system laid down in article 100 of the Basque Police Force Act and Decree No. 50/1993 (16 March) and propose that it be substituted by an electoral procedure based solely upon universal suffrage.
668. The Committee takes note of the statement by the Basque Department of the Interior that: (1) under the present system of union representation within the Autonomous Basque Police Force, proportional representation, on the basis of the results obtained by union organizations through a ballot box procedure in which all police officers take part, is combined with representation through union stewards on the basis of the membership they represent (the complaint only addresses this latter component); (2) by virtue of the present system, with regard to the apportioning of the number of stewards on the basis of the membership that the unions represent, the Basque Minister of the Interior, upon proposals by the Industrial Relations Board (comprising seven union organizations’ members, seven
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employers’ organizations members, a Chairperson and a Secretary General (neither of whom have the right to vote) and who are appointed by the Lehendakari (the Executive)), designates three persons to make up a committee responsible for verifying trade union membership and apportioning the number of stewards due to those organizations; the unions shall supply the committee with a list of their members; (3) to guarantee confidentiality in its work, the committee shall, by prior arrangement, be entitled to visit the unions’ headquarters; (4) the texts governing this system were negotiated with the union organizations; (5) the Constitutional Tribunal did not find the union representation system laid down in article 100 of the Basque Police Force Act unconstitutional when a political party lodged an appeal seeking such a ruling; (6) the Basque Administration has repeatedly fulfilled its obligations, by requesting the Industrial Relations Board to nominate three members of the committee responsible for verifying union membership; (7) between 1993 and 1997, it was not possible to apply the system of representation on the basis of membership (appointment of stewards) as a consequence of the boycott on the Industrial Relations Board by two unions with minority representation in the Basque Police Force; (8) finally, in 1997 and 1999, the Industrial Relations Board nominated the deans of the bar associations, but three unions (affiliates of the complainant organization) refused to supply the membership data to the committee called upon to ascertain membership and, thereby, prevented the appointment of stewards; (9) the verdict of the Basque High Court of Justice (Administrative Appeal Chamber) threw out the appeal lodged by one of the minority unions opposed to the present system (with regard to the relevant articles of Decree No. 50/1993 (16 March), elaborating upon the Basque Police Force Act) and which sought a ruling that it was unconstitutional; this verdict emphasizes that the committee responsible for verifying union membership is made up of impartial persons of proven competence, subject to professional secrecy with regard to the data to which they may have access and that, when the Minister of the Interior appoints these members, he shall abide by the nominations made by the Industrial Relations Board; consequently, the personal data will not be disclosed to the administration or third parties; this verdict was the subject of a final appeal lodged with the Supreme Tribunal on 9 October 1996 and which is still pending.
669. The Committee wishes to recall, firstly, that Conventions Nos. 87 and 98 are compatible both with systems which foresee union representation, for the exercise of collective trade union rights, based upon the degree of actual union membership, as well as with those foreseeing such union representation on the basis of general ballots of workers or officials, or, yet again, with systems constituting a combination of both. The latter option (a so- called mixed system) is the one laid down by the Basque Police Force Act and the relevant Decree, according to which the apportioning of the number of union stewards is determined by a three-member committee responsible for verifying the trade union membership of the different organizations. In the Committee’s opinion, this kind of system is compatible with the principles of freedom of association, as long as it offers certain guarantees. Clearly, the protection of data regarding union membership – the issue raised by the complainant organization – is a fundamental aspect of human rights and, in particular, with regard to the right to privacy; however, in the Committee’s opinion, inasmuch as the verification of union membership is subject to strict guarantees, there is no reason why it should not be compatible with the observance of such rights or guarantee confidentiality in respect of members’ identities. The Committee observes that the Basque Police Force Act and the ensuing Decree contain such guarantees, given that, according to the texts, the members are committed to professional secrecy (violation of which is punished, in the majority of countries, by criminal penalties), must be impartial persons with proven competence and are nominated by a tripartite body (bipartite in terms of voting rights); all of these conditions are such as to guarantee that the personal membership data are not divulged to the Administration or third parties. Nevertheless, from a practical point of view, certain minority organizations represented within the GB.277/9/1
Basque Police Force reject the representation system, on the basis of union membership, or, at least, voice reservations regarding the characteristics of the present system in connection with respect for the constitutional rights of personal privacy. In this regard, the Committee emphasizes that it is important for the bodies responsible for verifying the membership levels of union organizations to enjoy the confidence of all such organizations. Accordingly, the Committee requests the Government to recall to the Basque Government the advisability of continuing to promote a dialogue between union organizations, including those with minority status, for the following purposes: (1) the application of agreed practices to be respected by the Industrial Relations Board, regarding that body’s criteria for nominating the three persons to sit on the union membership verification committee; and (2) establishing, between trade unions, a code of conduct governing the conditions in which the membership verification committee is to be supplied with the data regarding their members, with the use of appropriate means of personal data processing, with guarantees of absolute confidentiality.
The Committee’s recommendation
670. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
The Committee requests the Government to recall to the Basque Government the advisability of continuing to promote a dialogue between union organizations, including those with minority status, for the following purposes: (1) the application of agreed practices to be respected by the Industrial Relations Board, regarding that body’s criteria for nominating the three persons to sit on the union membership verification committee; and (2) establishing, between trade unions, a code of conduct governing the conditions in which the membership verification committee is to be supplied with the data regarding their members, with the use of appropriate means of personal data processing, with guarantees of absolute confidentiality.
CASE NO. 2008
REPORT IN WHICH THE COMMITTEE REQUESTS TO BE KEPT INFORMED OF DEVELOPMENTS
Complaint against the Government of Guatemala presented by the National Federation of Public Employees’ Trade Unions (FENASEP)
Allegations: Dismissals of trade union officials without the judicial authorization required by law
671. The complaint is contained in a communication from the National Federation of Public Employees’ Trade Unions (FENASEP) dated 26 January 1999. The Government replied in a communication dated 27 August 1999.
672. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
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A. The complainant’s allegations
673. In its communication of 26 January 1999, the National Federation of Public Employees’ Trade Unions (FENASEP) alleges that Mr. Germán Rojas Martínez, Deputy General Secretary of the Union of Employees of the General Directorate of Civil Aviation, was dismissed on 27 December 1996 without a valid reason (“for organizational reasons”), without the court authorization required by law, in contravention of section 223(d) of the Labour Code and article 14 of the collective agreement concerning the protection of trade union officials. The complainant supplies the text of the court ruling of 12 May 1998 upholding a previous order of the Inspectorate of Labour to reinstate the official in question.
674. The complainant also alleges the dismissal without a valid reason of Mr. Mario René Flores Chiquín, the Cultural and Sports Secretary of the Civil Aviation Trade Union Association, on 16 December 1998, also in violation of section 223(d) of the Labour Code and article 13 of the relevant collective agreement. According to Ministry of Labour documents supplied by the complainant, Mr. Flores Chiquín had held union office since August 1998 (the term of office would have ended in August 2000).
B. The Government’s reply
675. In its communication of 27 August 1999, the Government states with regard to the dismissal of Mr. Germán Rojas Martínez that the General Directorate of Civil Aviation agreed to his reinstatement, but to date he has not resumed work, despite being invited to do so on several occasions. All that is needed is for him to report to the General Directorate and the situation will be normalized.
676. As regards the dismissal of Mr. Mario René Flores Chiquín, the Government states that at the time of his dismissal he did not have trade union privileges, since according to a labour registry certificate (which it says it supplied but which has not been received by the ILO) such union privileges were granted only after he had been dismissed. The General Directorate of Civil Aviation thus acted within its statutory powers and its actions cannot be regarded as an attempt to threaten or restrict freedom of association.
C. The Committee’s conclusions
677. The Committee notes that this case concerns allegations of dismissals without valid reasons of two trade union officials of the General Directorate of Civil Aviation, Mr. Germán Rojas Martínez (whose reinstatement has been ordered by a court) and Mr. Mario René Flores Chiquín, both of whom, according to the complainant, were covered by a special protection for trade union officials provided for in legislation.
678. With regard to the first individual named above, the Committee notes that according to the Government, the General Directorate of Civil Aviation agreed to his reinstatement but that Mr. Germán Rojas Martínez has yet to report for work and when he returns the situation will be normalized. The Committee notes with regret that one and a half years passed between this official’s dismissal on 27 December 1996 (“for organizational reasons” according to the complainant) and the court order for his reinstatement which was issued on 12 May 1998. The Committee deeply regrets the dismissal of this official and wishes to remind the Government of the principle according to which:
Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, GB.277/9/1
and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned.
[See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749.]
679. As regards the allegation concerning the dismissal of the trade union official Mr. Mario René Flores Chiquín on 16 December 1998 without judicial authorization, the Committee notes that the Government cites a certificate provided by the labour registry (which the ILO has not received) according to which the official in question acquired trade union privileges (irremovability) only after his dismissal. The Committee notes, however, that the complainant supplies a certificate from the labour registry according to which the officers of the Union of Employees of the General Directorate of Civil Aviation were registered in August 1998, while the dismissal occurred in December of the same year, and union officers remain in office for a period of two years. Under these circumstances, the Committee requests the Government to clarify the discrepancy between the two labour registry certificates and, if it is confirmed that the union official in question had trade union privileges at the time of his dismissal, to ensure that he is reinstated in his post immediately. The Committee requests the Government to keep it informed in this regard.
The Committee’s recommendations
680. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) The Committee requests the Government to clarify the apparent discrepancy between the two labour registry certificates concerning the status of Mr. Mario René Flores Chiquín as a trade union official at the time of his dismissal and, if it is confirmed that he had trade union privileges at that time, to ensure that he is reinstated in his post immediately.
(b) The Committee requests the Government to keep it informed of developments in this regard.
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CASE NO. 2032
DEFINITIVE REPORT
Complaint against the Government of Guatemala presented by – the Federation of Bank and Insurance Employees (FESEBS) and – the Trade Union Federation of Forestry, Timber, Environmental and Natural Resources Workers of Guatemala (FESITRASMMAR)
Allegations: Issuance of an administrative circular removing the right of the Labour Inspectorate to intervene in the public sector
681. The complaint is contained in a joint communication by the Federation of Bank and Insurance Employees (FESEBS) and the Trade Union Federation of Forestry, Timber, Environmental and Natural Resources Workers of Guatemala (FESITRASMMAR) dated 28 April 1999. The Government replied in a communication of 13 December 1999.
682. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. The complainants’ allegations
683. In their joint communication of 28 April 1999, the Federation of Bank and Insurance Employees (FESEBS) and the Trade Union Federation of Forestry, Timber, Environmental and Natural Resources Workers of Guatemala (FESITRASMMAR) allege that, starting in May and June 1998, the assistance provided by labour inspectors in actions brought by state sector employees was suspended, so that many requests for intervention submitted to the General Inspectorate of Labour were delayed, blocked or turned down. The reason given for such abrupt action by the labour authorities was that instructions to that effect had been issued by the Minister of Labour and Social Security. When trade union leaders asked for a meeting with the Minister to discuss the situation, he cited a legal review carried out by his legal adviser and Deputy Minister. The union leaders expressed their disagreement.
684. The complainants add that at meetings of the Tripartite Commission in early 1999, Ministry of Labour advisers communicated the text of Circular LFLL/oars, No. 454-98, of 21 September 1998, which was signed by the Minister of Labour and Social Security, together with Circular No. 3-1998-09-23, signed by the Assistant Inspector-General of Labour, and instructions to the General Inspector of Labour henceforth to refrain from intervening in matters relating to the public sector, in accordance with the law.
685. The complainants indicate that if the procedure for revocation or review of a decision provided for under section 275 of the Labour Code is to be used, it must be initiated within 48 hours of the decision being announced. It is clear that, since the trade union organizations concerned were not informed of the circular and the associated documents in September 1998, it was not possible to bring any action within the legal framework provided by Guatemalan law. Furthermore, the circular in question does not have the GB.277/9/1
character of a formal decision and therefore cannot be appealed under Guatemalan law. In the opinion of the complainants, this violates Convention No. 87, since it limits or hinders the exercise of trade union rights. Section 2 of the Act respecting judicial bodies states that “the law is the basis of legislation”; an attempt has been made in the present case to establish a legal standard unfavourable to members of public sector unions on the basis of a judgement given by the legal adviser at the Ministry of Labour and the incumbent Minister. A “circular” cannot be a source of law and Circular LFLL/oars, No. 454-98, of 21 September 1998, should therefore be revoked.
B. The Government’s reply
686. In its communication of 13 December 1999, the Government states that labour relations between the State and its employees in Guatemala are governed by the provisions of the Civil Service Act, in accordance with article 108, paragraph 1, of the Constitution. Under the terms of articles 2 and 191 of the Labour Code, public servants are excluded from the scope of the Labour Code. It should be noted that the Labour Inspectorate is a labour institution established by the Labour Code.
687. Section 2 of the Civil Service Act states its general purpose as being “to regulate relations between the public administration and its employees with a view to ensuring the efficiency of the service as well as equitable treatment and job satisfaction for the employees themselves, and to establish standards for the application of a personnel administration system”. Section 19(6) of the Act states the mandate of the National Civil Service Board in the following terms: “To investigate and resolve by administrative means appeals that may arise in connection with the application of this Act in the following areas: recruitment, selection, appointments, assignment or reassignment of posts, transfers, suspensions, redundancies and dismissals”. With regard to the protection of the rights of public servants in the broader sense, section 80 of the Act, which concerns the administrative procedure for challenging decisions taken by heads of civil service departments, refers to claims that may arise under the provisions of section 19(6); however, it also widens the frame of reference by allowing other claims which arise from the other provisions of the Act. Section 80 uses the following wording: “Claims to which section 19(6) of this Act refers and others contained in it must be substantiated in the following form …”. The procedure by which the National Civil Service Board settles disputes arising between the State and its employees is restricted to disputes pertaining to individual, rather than collective, labour relations, given that the Act dates from 1969 when freedom of association, collective bargaining rights and the right to strike of state employees were not recognized (these rights were restored with the Constitution of 1986). The present Constitution recognizes the right of state employees to strike but under article 116 that right may be exercised only “in the manner specified by the relevant laws”.
688. The Government adds that the relevant law in this case is Congressional Decree No. 71-86 containing the Act respecting association and strike action by state employees. According to section 2 of the Act,
As regards the establishment and organization of trade unions, federations and confederations of state employees and their decentralized and autonomous bodies, and as regards the regulation of their functioning and the exercise of their rights, state employees and their decentralized and autonomous bodies shall be subject to the provisions of the Labour Code and Decree No. 1441 of the Congress of the Republic, where those provisions do not contravene the principles of the Constitution.
689. On the basis of these provisions, the administrative enforcement of the individual rights of public servants is governed by the procedure established under the Civil Service Act and,
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in such cases, the competent body for settling any disputes is the National Civil Service Board, rather than the General Inspectorate of Labour. If this were not the case, there would be overlap with the administrative bodies responsible for hearing individual labour disputes in the public sector. It would not be possible to conceive of a legal system in which, on the one hand, the National Civil Service Board could rule on a dismissal in accordance with the powers given to it under section 81 of the Civil Service Act, and, on the other hand, the Labour Inspectorate, without statutory powers, could bring an action before a labour tribunal against a public official responsible for violating the Civil Service Act. The inappropriate application of the latter mechanism has only created confusion, to the detriment of those state employees who bring cases before the General Inspectorate of Labour – which has no legal power and lacks the administrative means to settle a dispute – and therefore cease to pursue the case before the National Civil Service Board, the body which is competent to hear such cases and decide whether or not an application is receivable. The result of this is that the claim ceases to be enforceable once the statutory time limit has expired.
690. Unlike the exercise of individual rights of state employees, which comes under the jurisdiction of the National Civil Service Board at its administrative headquarters, collective rights of association and collective bargaining relating to applications for official recognition, registration of trade union bodies, the irremovability of representatives and other aspects of their legal status, are dealt with by the General Directorate of Labour and the General Inspectorate of Labour; certification of collective labour agreements, notification of collective accords and mediation in collective talks are dealt with by the General Inspectorate of Labour; certification of collective accords regarding conditions of employment is dealt with by the Office of the Minister of Labour, in accordance with section 2 of Decree No. 71-86 and specific provisions of the Labour Code and its regulations.
691. The purpose of the judgement of 16 September 1998 issued by the Legal Department of the Minister of Labour was to clarify the situation described above and to promote the correct application of labour law to the benefit of public servants themselves, by eliminating the discretional powers of intervention of the Labour Inspectorate in matters for which it is not competent. On the basis of that judgement, Circulars No. 454-98 signed by the Ministry of Labour and No. 3-1998-09-23 signed by the Inspector-General were issued. Article 154 of the Constitution contains the following provision: “Public service: responsibility before the law. Officials are custodians of authority and legally responsible for their official conduct. They are subject to, and never above, the law”. In accordance with this provision and the principle embodied in section 4 of the Act respecting judicial bodies, the corps of labour inspectors is the sole body authorized to carry out inspections in those workplaces where the law expressly allows them to do so, public service departments thus being excluded under the terms of the Labour Code and Conventions Nos. 81 and 129 ratified by Guatemala. Certain exceptions allowed under the terms of section 2 of Decree No. 71-86 do not pertain to inspection functions in the true meaning of the term.
692. According to the Government, it is clear from all this that the instructions which gave rise to the dispute do not in any sense constitute an arbitrary suspension of the assistance given by labour inspectors in cases brought by state employees, nor is it the purpose of those instructions to establish a legal standard unfavourable to members of public sector unions in Guatemala on the basis of a judgement given by the Legal Adviser of the Ministry of Labour, as the complainants maintain. Nor is there any violation of law, since it is obvious that the circulars which have been challenged do not purport to be sources of law. The principle of the pre-eminence of the Constitution is not violated, as has been claimed, and Circulars Nos. 454-98 and 3-1998-09-23 do not violate Convention No. 87. GB.277/9/1
693. In order to show that Circular No. 454-98 has not affected, diminished or infringed the statutory rights of state employees, and that it does not restrict freedom of association and fully complies with Convention No. 87, the Government attaches a number of recent documents, as follows: (a) rulings of the Ministry of Labour officially certifying collective accords on conditions negotiated between public sector trade union organizations and state departments; (b) rulings given by the General Directorate of Labour recognizing the legal personality of public sector unions; and (c) judgements of the General Inspectorate of Labour informing state authorities of draft collective accords presented by trade union organizations.
694. Lastly, as regards the alleged disinformation and the supposed “uncertainty” in which the unions were kept until February 1999, which is said to have made it impossible to use the remedies available under domestic law, the Government states that this is totally false. Circular No. 454-98 had been issued only recently when the Minister’s Office granted the meeting sought by the public sector unions, including members of FESEBS, and explained in detail the purpose of the instructions. Since they were clearly not in agreement, they were invited to present considered arguments to demonstrate that in purely legal terms the instructions contained in the circulars were inconsistent, on the understanding that those instructions would be suspended if that were shown to be the case. The Minister’s Office reminded them that they could have made use of the ordinary and extraordinary legal remedies already available. Regrettably, the public sector union officials who applied to the Ministry of Labour did so in a spirit of open confrontation and confined their contribution at subsequent meetings to verbal attacks on ministry officials and advisers.
C. The Committee’s conclusions
695. The Committee notes that in the present case the complainants: (1) object to the contents of a circular dated 21 September 1998 according to which the Labour Inspectorate can no longer intervene in matters relating to the public sector, which violates Article 3 of Convention No. 87; (2) allege that they were not informed of the circular in September 1998 and therefore could not appeal against it; and (3) consider that a circular cannot be a source of law and therefore request that the circular of 21 September 1998 be revoked.
696. The Committee notes the Government’s statements to the effect: (1) that under the terms of the Constitution and legislation in force, the exercise of individual rights of public servants (relating to recruitment, selection, appointments, assignment of posts, transfers, suspensions, redundancies and dismissals) is governed by the Civil Service Act and comes under the jurisdiction of the National Civil Service Board, to which public servants may present claims and complaints; (2) that the exercise of collective rights (right of association, recognition and registration of trade union bodies, irremovability of union officials, etc.) comes under the jurisdiction of the General Directorate of Labour and the General Inspectorate of Labour (the Government supplies a copy of the rulings given by those bodies on issues relating to collective rights of public servants); and (3) that the purpose of the circular is to clarify the legal position with regard to these issues, ensure compliance with legislation and prevent intervention by the Labour Inspectorate in areas beyond its competence. In the Committee’s view, the fact that a body distinct from the Labour Inspectorate deals with the supervision and implementation of legal standards relating to individual rights of public servants does not in itself restrict or hinder the exercise of trade union rights. A problem could arise if in practice the delimitation between individual and collective rights – which is not always easy to establish – was not sufficiently clear, or if the National Civil Service Board did not provide adequate guarantees of impartiality or could not deal efficiently with complaints of violations of individual rights which also affect the exercise of trade union rights (for example, in the case of dismissal of a public servant because of his or her trade union membership or
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activities). However, these questions have not been the object of allegations by the complainants. The Committee therefore considers that it is not appropriate to pursue the examination of these allegations.
697. As regards the allegation that the trade union organizations were informed of the circular of 21 September 1998 months after it was signed by the Minister of Labour, a fact which prevented any legal appeal owing to the expiry of the statutory time limit, the Committee notes the Government’s statements to the effect that when the circular in question was still “recent” the authorities explained in detail to the trade union officials the purpose of the instructions set out in the circular and informed them that they could take legal action. The Committee thus regrets that there were no prior consultations with the trade unions in the public sector on the circular in question. In this regard, the Committee emphasizes that the circular marks a major change in the hitherto established practice of monitoring the application of laws and regulations relating to the individual rights of public servants, and accordingly draws the Government’s attention to the importance which it attributes to the promotion of dialogue and consultations in matters of mutual interest between the public authorities and the most representative occupational organizations of the sector concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 926]. The Committee has also emphasized the importance of prior consultation with employers’ and workers’ organizations before any legislation is enacted in the field of labour law [see Digest, op. cit., para. 930], and considers that these principles should be applied to the circulars. It requests the Government to take this principle duly into account in the future.
The Committee’s recommendation
698. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
Regretting that the Government adopted the circular of 21 September 1998 without consulting the public sector trade unions concerned, the Committee requests the Government in future to take into account the principle according to which the public authorities should consult the most representative organizations in matters of mutual interest, including administrative circulars which affect the interests of such organizations in the public sector and their members. GB.277/9/1
CASE NO. 2048
INTERIM REPORT
Complaint against the Government of Morocco presented by – the Moroccan Labour Union (UMT) – the Arab Maghreb Workers’ Union (USTMA) and – the International Confederation of Free Trade Unions (ICFTU)
Allegations: Arrest of trade union officers and members following strikes
699. The complaints in this case are contained in communications from the Moroccan Labour Union (UMT) dated 4, 25 and 27 September, 6 October and 20 December 1999. The Arab Maghreb Workers’ Union (USTMA) and the International Confederation of Free Trade Unions (ICFTU) supported the UMT’s complaint in communications dated 15 and 21 September 1999, respectively.
700. The Government sent its observations in communications dated 21 October and 9 December 1999, and 29 February 2000.
701. Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
702. In its communication of 4 September 1999, the UMT reports acts of repression against workers who have exercised their right to strike. The UMT explains that while the workers of the AVITEMA factory were holding a legal strike on 1 September 1999, with a peaceful sit-in inside the factory, in protest against management’s violation of labour legislation and protocols of agreement, the police intervened violently on Thursday, 2 September 1999 and placed 21 UMT activists under arrest, including seven women.
703. The UMT adds in its communication dated 27 September 1999 that these trade unionists, whose names are given in a list attached to the complaint, were refused bail, imprisoned and sentenced on 24 September 1999 by the Court of First Instance of Rabat to terms ranging from four months’ suspended sentence to eight months’ imprisonment. The UMT alleges further that when they arrested these trade unionists, the police tied them up and tortured them inside the factory itself. The director of the factory also allegedly participated in torturing the strikers.
704. In its communication dated 20 December 1999, the UMT states that 12 of the 21 trade unionists who were sentenced on 24 September 1999 are still in prison and that their appeal proceedings have been held up for no apparent reason until 28 December 1999. In addition, the UMT points out that about 100 of the former strikers had been prohibited from going back to work by their employers since 6 October 1999, when the strike officially ended. Despite the fact that the Ministry of Labour convened two meetings with the parties to the dispute, the employer refused to take part. Moreover, the Government has not taken any serious measures to enable the former strikers to return to work. On the contrary, the UMT asserts that the Government again called in the police, who intervened
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violently on 30 November 1999 against workers holding a peaceful sit-in in front of the factory gate demanding to be allowed to return to work and protesting against the recruitment of strike-breakers to keep the factory running.
705. The second part of the UMT’s complaint is contained in its communication of 25 September 1999. The UMT explains that in 1998 the seafarers of Morocco’s ports presented a list of demands concerning freedom of association of fishermen, an increase in benefits, social insurance coverage and other matters relating to conditions of work. Faced with the unyielding attitude of the Ministry of Fisheries and the shipowners, the workers called a strike on 24 September 1998 in the southern Moroccan ports. The strikers had to wait 45 days for negotiations to begin.
706. The UMT points out that following this strike a protocol of agreement was signed on 6 November 1998 with the Ministry of Fisheries, the shipowners, the local authorities and the fishermen’s trade union, in which the management and shipowners undertook to meet the workers’ main demands. However, according to the UMT ten months elapsed before the protocol of agreement was signed and none of these demands have been met despite repeated reminders by the fishermen’s trade union. The National Fishermen’s Union, a UMT affiliate, had no alternative but to call a strike beginning on 15 September 1999 in several of the country’s fishing ports.
707. Following this protest action, the UMT alleges that instead of opening negotiations with the trade union, the local authorities resorted to repression against the UMT’s activists and trade union structures. The organization specifies that on 18 September 1999, in the port of Agadir, the police arrested Mr. Brahim Mounacit, Secretary-General of the fishermen’s union, and two other trade unionists, Mr. Abarghaz Mohammed and Mr. Ouchikh Lhoucine. Lastly, the UMT states that the three trade unionists in question were brought before the Court of First Instance of Agadir on 24 September 1999 and charged with “insulting an officer and obstructing freedom to work” and all sentenced to a year’s imprisonment.
B. The Government’s reply
708. In its communication of 21 October 1999, the Government sets forth its observations concerning the first part of the UMT’s complaint, i.e. the collective dispute at the AVITEMA factory. The Government states that a week after the trade union officers of the UMT and the AVITEMA factory had taken office, on 14 May 1999, it had submitted a list of demands to the management and called a strike for 18 May 1999 without giving any notice. Despite the fact that negotiations had begun between the parties, the Government relates, the trade union officers had called further strikes on 17 and 25 May, 6 July and 12 August 1999. At no time did the workers suffer harassment in the exercise of their rights, according to the Government, and only some of the workers in the factory had taken part in these strikes. The Government also reported that 17 conciliation meetings had taken place and culminated in a protocol of agreement signed by the parties on 27 August 1999. The Government explains that one of the issues still pending was the trade union officers’ demand that the workers in the enterprise be paid the minimum wage (SMIG) applicable in industry, commerce and services, whereas the activity of the enterprise, which produces eggs, is classified as an agricultural activity under the decree of 5 January 1999 approving the Moroccan classification of economic activities. As these workers are paid the minimum agricultural wage (SMAG), the Government considers that their demands are not justified. According to the Government, faced with a stalemate the factory management called on the good offices of the Secretary-General of the UMT but the latter did not respond. The trade union officers then declared a sit-in inside the factory and some of the workers allegedly committed acts of violence in order to intimidate non-strikers who disapproved GB.277/9/1
of their action. The Government asserts that it was at this point that the employer called in the local authorities. According to the Government, some members of the local authorities had been attacked and seriously injured by the strikers.
709. Following these events, the criminal investigation department, acting on the instructions of the public prosecutor’s office, arrested the strikers implicated, who were heard and brought to trial after a regular procedure before the Court of First Instance of Rabat and sentenced to terms of imprisonment or given suspended sentences. The Government asserts that the incident should be considered as being within the purview of the ordinary law and not as a trade union matter.
710. In its communication of 29 February 2000, the Government explains that, considering the violent acts committed by certain workers during the protests, the Prosecutor’s Office of the Court of First Instance of Rabat filed suits against some of these workers on the following grounds: attacking and injuring representatives of the public forces in the exercise of their functions; obstructing the exercise of the freedom of work through acts of violence; and damage to property. Following the hearings, where the accused enjoyed all legal guarantees provided for in existing legislation, including the right to be defended, the Court of First Instance of Rabat sentenced one group of accused to a fixed term of jail from one to eight months, and a fine of 500 dirhams, and gave another group a suspended sentence of three to four months, and a fine of 500 dirhams. The Court nevertheless granted them their release, following which they were all released on 21 December 1999. The Government adds that this case, which has been appealed, is pending before the Correctional Chamber of the Rabat Court of Appeal. Any additional information will be transmitted to the Committee upon reception.
711. In its communication of 9 December 1999, the Government sets forth its observations concerning the second part of the UMT’s complaint, i.e. the dispute with the fishermen in the Moroccan ports. In this respect, the Government states that in the last three months of 1998 the Ministry of Maritime Fisheries held a number of meetings with the trade union representatives of the seafarers, the shipowners and heads of seafood processing units. These meetings culminated in the conclusion of an agreement signed on 6 November 1998 between the fishermen’s union and the shipowners, in the presence of the management. The agreement was based on 33 demands put forward by the trade unions. The Government points out however that another strike was called for 9 September 1999, three days after the publication of the report on the seafarers’ situation by the UMT office in Agadir. Again on 9 September 1999, the management called a meeting with the trade union at the Chamber of Maritime Fisheries in Agadir to review the situation with regard to the application of the terms of the agreement signed on 6 November 1998. The Government states that the representatives of the fishermen’s union affiliated to the UMT did not attend this meeting despite the efforts made to this end by the regional representative of the UMT.
712. The Government states further that on 14 September 1999 the seafarers of a number of fishing trawlers of the Agadir, Tan Tan and Laâyoune ports declared an open-ended strike. In response to this strike, meetings were held on 21 and 24 September 1999 but the fishermen’s trade union did not participate in the second meeting. Even worse, according to the Government, strikers committed acts of vandalism and threatened seafarers who did not take part in the strike action.
713. Lastly, the Government states that the three strikers were arrested on 18 September 1999 not on account of their trade union membership but for breach of public order in the port of Agadir, because they had damaged property and obstructed the freedom to work of non- striking seafarers. The Government adds that after committing these acts the persons in
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question had been brought to trial and sentenced in accordance with the legislation in force.
C. The Committee’s conclusions
714. The Committee notes that this case concerns, on the one hand, a dispute in the AVITEMA factory, and on the other, a dispute involving the seafarers in Moroccan ports.
715. As regards the first part of the complaint concerning the workers in the AVITEMA factory, the Committee notes the entirely contradictory versions put forward by the parties to the dispute with regard to the calling and holding of the strike and the ensuing violence. While the UMT states that a legal and peaceful strike was called by the factory workers and violently repressed by the police, the Government asserts that the police intervened in the dispute only after acts of violence had been perpetrated by strikers against non-striking workers. The complainant further alleges that at the time of their arrest, the 21 trade unionists who had been exercising their right to hold a legitimate and peaceful strike were tortured in the factory itself on the orders of the local authorities. The Government on the other hand asserts that members of the local authorities were attacked and seriously injured by strikers and that the arrest of the latter by the criminal investigation department and their subsequent sentencing to prison terms should be considered as being within the purview of the ordinary law and not as a trade union matter. The Committee notes that the workers concerned were sentenced by the Court of First Instance to jail terms and fines but that they were all released. The Committee further observes that they have appealed their case.
716. Without wishing to express an opinion on the validity of the trade union’s demands that motivated the strike, the Committee recalls first of all the importance which it attaches to the obligation of both employers and trade unions to negotiate in good faith for the maintenance of the harmonious development of labour relations. Moreover, the Committee insists that the rights of workers’ organizations can only be exercised in a climate that is free from violence. It recalls that, while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists. Moreover, 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 Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 83 and 601]. In this case, it is difficult for the Committee, given the contradictory statements made by the complainant and the Government, to come to a conclusion as to the peaceful nature of the strike. However, the Committee notes that the Government provides few details on the nature of the violent acts allegedly committed against the authorities by the 21 striking workers, a third of whom were women.
717. As regards the alleged cases of torture or ill-treatment to which the striking workers were subjected, the Committee expresses its profound concern and reminds the Government that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., para. 53]. The Committee requests the Government to institute such an inquiry and to keep it informed in this respect.
718. Concerning the prison terms imposed on 21 men and women who participated in a strike, the Committee, while emphasizing that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike, nonetheless GB.277/9/1
reminds the Government 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 Committee reiterates that 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 Digest, op. cit., para. 599]. The Committee, noting that an appeal is pending, requests the Government to transmit the decision of the Rabat Court of Appeal in this matter. The Committee hopes moreover that measures will be taken so as to ensure that the trade unionists are reinstated in their jobs.
719. As regards the employer’s refusal to let the former strikers return to work, and their recruitment of new workers to keep the factory running, the Committee deplores these practices and recalls that 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 The Committee accordingly urges the Government to take all the necessary measures without delay to ensure that former strikers are able to return to work at the AVITEMA factory and to keep it informed in this respect.
720. As regards the second part of the complaint, concerning the strike called by the fishermen’s trade union, the Committee again notes the contradictory versions of the parties with respect to the events leading up to the calling of the strike and the manner in which it proceeded. Concerning the allegations of non-observance of the agreements concluded and the Government’s unyielding attitude with regard to the trade union’s demands, the Committee recalls that while the question as to whether or not one party adopts an amenable or an uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement. Moreover, agreements should be binding on the parties [see Digest, op. cit., paras. 817 and 818].
721. As regards the arrest and sentencing to prison terms of three members of the fishermen’s trade union, the Committee notes that according to the Government they were sentenced not on account of the exercise of their right to strike or of their trade union membership but for breach of public order in the port of Agadir. The Committee, however, expresses its concern at the harshness of the sentences imposed and emphasizes that the sentencing of trade unionists to long periods of imprisonment, very often on grounds of “disturbance of public order”, in view of the general nature of the charges, might make it possible to repress activities of a trade union nature [see Digest, op. cit., para. 64]. The Committee requests the Government to inform it whether an appeal has been lodged by the three trade unionists sentenced. Lastly, recalling that no one should be penalized for carrying out a legitimate strike, the Committee expresses the hope that the workers concerned may benefit from measures in their favour, including an amnesty. It requests the Government to keep it informed in this respect.
The Committee’s recommendations
722. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) Concerning the alleged cases of torture in the AVITEMA factory, the Committee expresses its profound concern and requests the Government to institute an independent judicial inquiry without delay in order to determine
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responsibility and punish the guilty parties and to keep it informed in this respect.
(b) Concerning the prison terms, fixed or suspended, imposed on the 21 workers who had participated in a strike at the AVITEMA factory, the Committee notes that the workers have been released but that an appeal is pending. The Committee reminds the Government 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 Committee requests the Government to transmit the decision of the Rabat Court of Appeal in this matter. Furthermore, the Committee hopes that measures will be taken so that the unionists may be reinstated in their jobs.
(c) Concerning the employer’s refusal to allow the workers who had exercised their right to strike in the AVITEMA factory to return to work, the Committee urges the Government to take all the necessary measures without delay to ensure that these workers are able to return to work and to keep it informed in this respect.
(d) Concerning the sentencing to heavy prison terms of the three members of the fishermen’s trade union affiliated to the UMT, the Committee expresses the hope that measures will be taken so that the workers may benefit from an amnesty. It requests the Government to keep it informed in this respect.
CASE NO. 2013
INTERIM REPORT
Complaint against the Government of Mexico presented by the Academic Workers’ Union of the National College of Technical Occupational Education (SINTACONALEP)
Allegations: Refusal to register an organization, acts of interference and anti-union discrimination by the employer
723. The complaint in this case was contained in a communication from the Academic Workers’ Union of the National College of Technical Occupational Education (SINTACONALEP) dated 18 February 1999. Further information was forwarded by the complainant in a communication dated 9 August 1999. The Government sent its reply in a communication dated 13 October 1999.
724. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
725. In its communication dated 18 February 1999, the Academic Workers’ Union of the National College of Technical Occupational Education (SINTACONALEP) states that it GB.277/9/1
was established on 2 February 1997 and requested the General Directorate for the Registration of Associations (General Directorate) to register it as a trade union on 7 March 1997. On 30 April 1997, the General Directorate adopted a resolution in which it declared itself to be incompetent in accordance with the Constitution of the United States of Mexico to judge the substance of SINTACONALEP’s request for registration. On 22 September 1997, this decision was reversed by the first district labour court of the federal district which declared the General Directorate to be competent. This decision was confirmed by the first court of arbitration for labour issues of the first circuit on 29 January 1998. Following this decision, the General Directorate studied and evaluated the documentation submitted by the persons concerned and on 24 April 1998 requested the complainant to provide documentation in order to confirm the existence of an employment relationship between the members of the group making the application and the National College of Technical Occupational Education (CONALEP). SINTACONALEP submitted the requested documents on 21 July 1998, that is class accreditation certificates, class timetables, partial evaluation reports and student attendance lists, while protesting against this practice that is not foreseen in the Federal Labour Act and which goes beyond the powers of the General Directorate. On 14 and 21 July 1998, SINTACONALEP once again requested trade union registration in accordance with section 366 of the Federal Labour Act which provides that 60 days following the deposit of the request for registration, the applicant may request the administration to issue a decision within three days, failing which registration is granted automatically. The General Directorate responded to neither of these requests. On 7 September 1998, upon the request of SINTACONALEP, the General Directorate asked the General Directorate of the Federal Labour Inspectorate to identify the CONALEP workers. This was done in September and October 1998. On 17 December 1998, the General Directorate adopted another resolution refusing to register SINTACONALEP because its members were not workers within the meaning of the Federal Labour Act. According to the General Directorate, the documents submitted by the applicants did not corroborate the employment relationship necessary under the Labour Code and inspections carried out with the employers’ legal representatives showed that (1) the members of this group were not recognized as workers in any of the various work centres; and (2) some of the members of this group were recognized as being providers of occupational services as they had signed contracts for the provision of occupational services, from which it can be deduced that their relationship is of a strictly civil nature and is not an employment relationship. For the General Directorate, the relationship between these persons and CONALEP is of a civil nature and is regulated by the Civil Code rather than by the Federal Labour Act. For these reasons, the members of this group are not workers and may therefore not form a union under the Federal Labour Act. SINTACONALEP denounces the arbitrary and biased attitude of the Mexican authorities responsible for processing requests for trade union registration and objects to the refusal to consider its members as workers, considering that the General Directorate has failed to respect the terms of section 366 of the Federal Labour Act which strictly defines the possible reasons to refuse trade union registration. Under section 366 of the Act, a request can only be refused if: (1) the trade union does not intend to examine and defend the interests of its members; (2) it is not submitted by at least 20 active workers; and (3) the documents required under section 365 of the Federal Labour Act are not submitted. SINTACONALEP fulfils all these conditions, as demonstrated by its trade union statutes, the fact that its initial request related to 220 workers and also that the documents required under section 365 of the Federal Labour Act were submitted. The General Directorate took a negative decision as a delaying tactic, acting in bad faith and looking for arguments to support the illegal refusal to register. Having invented one cause for incompetence which was rejected by the higher bodies, the General Directorate went on to invent further requirements, such as the need to prove the employment relationship, which is stipulated in neither the Constitution nor the Federal Labour Act. According to SINTACONALEP, the General Directorate is not a jurisdictional authority but an administrative one which is not
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empowered to settle conflicts between workers and employer(s), an area which comes under the exclusive competence of the Committee for Conciliation and Arbitration, a jurisdictional authority. SINTACONALEP did not ask the registration authority to rule on the question of whether its members were CONALEP workers, but simply to register the trade union as it fulfilled the necessary legal conditions. This refusal to register stands in the way of a collective agreement being adopted, trade union representation with the employer, the recognition of legal personality and is contrary to article 133 of the Constitution and to Convention No. 87. From the very beginning, CONALEP’s position has been to make employment conditional upon the workers’ rejection of the trade union, by forcing workers affiliated to the union to sign letters of resignation which were sent to the authorities. This practice, together with an administrative procedure that has been in place since March 1997, increases employer pressure on these workers. In Mexico, there are no educational institutions other than CONALEP, where the entire teaching staff – 18,000 teachers – is deprived of its trade union rights, neither are there any precedents of a federal authority openly supporting an irregularity of this kind. CONALEP’s 18,000 teachers are denied their trade union rights and many members of SINTACONALEP have been dismissed.
726. In a communication dated 9 August 1999, SINTACONALEP sent additional information indicating that the authorities are excessively delaying addressing the question of trade union registration. The procedures for unjustified dismissal brought by its members have been intentionally delayed, with hearings being scheduled at approximately three monthly intervals, and these hearings sometimes even being suspended by the authorities as a delaying tactic. CONALEP continues to oblige its teaching staff to sign documents denying the existence of an employment relationship and feigning another type of relationship, while the form, the terms and the conditions all correspond to an employment relationship.
B. The Government’s reply
727. In its communication dated 13 October 1999, the Government transmits the reply of the Department of Labour and Social Welfare to which the General Directorate for the Registration of Associations reports. In a judicial ruling dated 26 August 1999, the fourth court of arbitration for labour issues of the first circuit confirmed the decision handed down on 17 April 1999 by the second district labour court of the federal district refusing the complainant organization the protection of amparo (enforcement of constitutional rights) against the acts of the Department of Labour and Social Welfare. It must be definitively concluded that the refusal to register SINTACONALEP is in accordance with the legal provisions in force in Mexico, an interpretation confirmed in fact by the two courts. Given that the action for amparo to protect against the encroachment of the constitutional rights of citizens was rejected, it may be said in this case that the individual and collective rights of the complainants have not been undermined and there has been no violation of international conventions as reported to the ILO. The question of the refusal to register the complainant as a trade union has therefore been definitively settled by the competent jurisdictional authorities.
C. The Committee’s conclusions
728. The Committee notes that the questions raised by the complainant teachers’ organization relate to the following: (1) the refusal to register SINTACONALEP since its establishment on 2 February 1997; and (2) acts of interference and discrimination against the members of this organization by the National College of Technical Occupational Education (CONALEP). GB.277/9/1
729. The complainant explains that the General Directorate’s pretext for refusing the registration is the absence of an employment relationship between the members of the group concerned and the National College of Technical Occupational Education, meaning that the members of this group are not workers in the meaning of the Federal Labour Act. The complainant states that, according to the General Directorate, inspections carried out with the employers’ legal representatives showed that while none of the members of this group were recognized as workers within the meaning of the abovementioned Act, some members were recognized as providers of occupational services, as they had signed contracts for the provision of occupational services. It was therefore deduced that their relationship was of a strictly civil nature and did not constitute an employment relationship. SINTACONALEP maintains that it fulfils the legal conditions as demonstrated by its trade union statutes, the fact that its initial request related to 220 workers and that it submitted the documents required under section 365 of the Federal Labour Act. According to SINTACONALEP, the General Directorate took a negative decision as a delaying tactic, acting in bad faith and looking for arguments to support the illegal refusal to register. The Committee notes that, according to SINTACONALEP, having invented one cause for incompetence which was rejected by the higher bodies, the General Directorate went on to invent further requirements, such as having to prove the employment relationship, which is stipulated in neither the Constitution nor the Federal Labour Act.
730. The Committee notes that, according to the Government, the refusal to register SINTACONALEP is in accordance with the legal provisions in force in Mexico and with ILO Conventions, an interpretation that was in fact confirmed by two courts, thus definitively settling this question.
731. The Committee recalls that “by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and police – should have the right to establish and to join organizations of their own choosing”. Nevertheless, in order to draw conclusions on all the elements of information, the Committee requests the Government to transmit the most detailed information on: (1) the manner in which an unregistered organization may defend and promote effectively the interests of its members and carry out activities; and (2) the applicable legislation and whether it sets forth the denial of registration and on what basis.
732. With respect to the acts of interference and the acts of discrimination against the members of SINTACONALEP by CONALEP, the Committee notes that the Government gives no response to the complainant’s allegations. The Committee also notes that, according to SINTACONALEP, CONALEP’s position was to make employment conditional upon the workers’ rejection of the trade union, forcing the workers to sign letters of resignation which were sent to the authorities. Furthermore, many members of SINTACONALEP were dismissed, and the procedures for unjustified dismissal lodged by its members have been delayed. Lastly, according to the allegations, CONALEP continues to make its teaching staff sign documents denying the existence of an employment relationship and feigning another type of relationship, although the form, terms and conditions all correspond to an employment relationship.
733. Given these serious allegations of interference and discrimination by CONALEP, the Committee requests the Government to conduct an inquiry into these acts and to provide detailed and specific information.
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The Committee’s recommendations
734. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) The Committee requests the Government to transmit the most detailed information on: (1) the manner in which an unregistered organization may defend and promote effectively the interests of its members and carry out its activities; and (2) the applicable legislation in the present case and whether it sets forth the denial of registration and on what basis.
(b) Concerning the allegations of interference and discrimination by CONALEP, the Committee requests the Government to conduct an inquiry into these acts and to provide detailed and specific information.