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Definitive Report - Report No 334, June 2004

Case No 2222 (Cambodia) - Complaint date: 27-AUG-02 - Closed

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Allegations: (1) allegations relating to legal issues: the Common Statute of Civil Servants is incompatible with Conventions Nos. 87 and 98, as it does not guarantee the rights of public employees to form trade unions and to conduct collective bargaining nor does it ensure the protection of trade union leaders and members against anti-union discrimination; (2) allegations relating to factual issues: in specific instances, the complainant was prevented by the local public authorities and the police from holding meetings relating either to its internal organization or to its activities

  1. 166. The Cambodian Independent Teachers Association (CITA) lodged its complaint in a communication dated 27 August 2002. Through a communication dated 29 August 2003, Education International (EI) transmitted a further communication from CITA, dated 4 July 2003 and completing the original communication. At the same time, EI declared that it associated itself with the complaint.
  2. 167. The Government submitted its reply in a communication dated 24 February 2004.
  3. 168. Cambodia 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). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

A. The complainant’s allegations
  1. 169. CITA indicates that it was established in 2000 and recognized by the Ministry of Interior in July 2001, following the intervention of the United Nations Special Representative to Cambodia for Human Rights.
  2. 170. In its original communication of 27 August 2002, CITA focuses on legal issues. It states that the Common Statute of Civil Servants, adopted on 21 October 1994, governs teachers’ conditions of employment. CITA submits that this statute is incompatible with Conventions Nos. 87 and 98. In particular, it does not guarantee civil servants’ rights to establish unions and to conduct collective bargaining, nor does it ensure protection of trade union leaders and activities. CITA places particular emphasis on the lack of protection against anti-union discrimination and the absence of collective bargaining. CITA believes that technical assistance should be provided in order to draft a law applicable to civil servants and compatible with Conventions Nos. 87 and 98. CITA has provided a translation of the Common Statute of Civil Servants.
  3. 171. In its second communication dated 4 July 2003, CITA contends that it was prevented by local public authorities and the police from organizing meetings concerning its internal organization and its activities. In support of its contention, CITA describes the circumstances surrounding the organization of specific meetings, which can be summarized as follows.
  4. 172. On 1 December 2002, CITA organized a convention in the Kompong Chhnang province, to establish a branch executive committee. CITA contends that the governor of the province, Mr. So Pearin, and the chief of police, Mr. Touch Narong, gave orders to have the convention surrounded by 30 police officers; they also banned the use of loudspeakers. CITA adds that the chief of the education department for the Kompong Thom province, Ms. Phat Chhny, wrote to the schoolmaster with a view to instructing teachers not to join CITA.
  5. 173. On 10 December 2002, CITA decided to hold a meeting in the compound of the Srayov Junior high school, Srayov commune, Stoeng Sen district, Kompong Thom province. The purpose of the meeting was to explain the role of trade unions. The third deputy governor of the Kompong Thom province, Mr. Kung Bunthan, and the district chief of police, Mr. Srey Puthy, ordered ten police officers to end the meeting.
  6. 174. On 22 December 2002, officials of CITA arrived at the "II village Chak Engre primary school", Mean Cheay district, to assist ten teachers who had been threatened and intimidated by the chief of the district education office, Ms. Kung Kanitha, and by the schoolmaster, Mr. Huy Saroen, following their participation in a non-violent demonstration on 16 December 2002. The schoolmaster called the police, and five police officers ousted officials of CITA from the school.
  7. 175. On 1 March 2003, the organization’s officials went to Saang high school, Saang district, Kandal province, to meet teachers. The schoolmaster, Mr. Chhi Kung, requested the deputy chief of police, Mr. Rothy, to threaten and oust from the school CITA’s president upon his arrival.
  8. 176. On 6 April 2003, CITA summoned a convention to establish a branch executive committee in Kompong Thom province. 150 teachers attended the convention. The complainant contends that, before the convention, Order No. 026, dated 1 April 2003, was released under the mark of the governor of the province, Mr. Nou Phoeng, forbidding CITA to hold the meeting on 6 April 2003.
  9. 177. CITA decided to hold a three-day seminar in Pursat province, to start on 26 June 2003. CITA explains however that the governor of the province, Mr. Ong Sami, informed it that he could not authorize the seminar to take place for security reasons. At the same time, the authorities forbade hotels and restaurants of the province to provide accommodation for the purpose of the seminar. Despite the governor’s refusal, the president of CITA decided to go ahead with the seminar. Forty teachers, from both the Kompong Chhnang and Pursat provinces, arrived to participate in the meeting. While half of the 40 teachers present were able to participate, the remainder were banned by 25 police officers from joining the seminar. The police prevented the meeting continuing after its official opening, by "cracking [it] down". The president of CITA made a second attempt to hold the seminar, but pressure engendered by the police presence obliged him to declare the seminar closed on the evening of 26 June 2003, to avoid violence and to ensure teachers’ security.
  10. 178. CITA contends that in relation to all the activities described above, despite having informed the competent authorities one week before the meeting was due to take place, it was always prevented by local authorities from carrying out its activities. CITA underlines that the Government has allowed local authorities to thwart its meetings. This is in clear violation of the national Constitution as well as of Conventions Nos. 87 and 98. According to CITA, the Government has denied teachers’ freedom of opinion, freedom of expression and right to assembly.

B. The Government’s reply

B. The Government’s reply
  1. 179. In its communication of 24 February 2004, the Government addresses solely the allegations relating to factual issues. The Government explains that the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation (MOSALVY), the Ministry of Education, Youth and Sport (MOEYS) and the Ministry of Interior have appointed an inter-ministerial group to investigate the allegations. For each instance, the Government submits both explanations and records of meetings conducted by the inter-ministerial group with representatives of the local authorities concerned and officials and members of the Cambodian Independent Teachers Association (CITA). The Government has provided the Committee with translations of the records, alongside originals bearing either fingerprints or signatures. These translations differ from those of the complainant in relation to the spelling of the names of provinces, districts, cities and of persons involved. For ease of reference, the Government’s reply will be reflected in the order followed by CITA in presenting the allegations.
    • Case of 1 December 2002 - Kampong Chhnang province
  2. 180. The Government denies that the rights of CITA have been infringed. It argues that the case stemmed from a lack of information and clarification. The Government underlines that the Association did not submit a proposal to obtain authorization from the competent authorities and that the latter had merely fulfilled their responsibility regarding the preservation of social order and security. The Government emphasizes that, while the meeting occurred under some constraints, CITA was able to carry it through to its end.
  3. 181. The Government submits three records of meetings conducted by the inter-ministerial working group in relation to these events. All of these meetings took place on 16 January 2004. The first record presented is that of the interview of four officials and members of the local branch of CITA: Mr. Chun Cham, Mr. Doung Chetra, Mr. Chan Nithera and Mr. Chhoeung Ravy. The following information was provided to the working group:
    • - CITA delivered a letter to the governor and to the directorate of education, youth and sport in relation to the meeting;
    • - the authorities did not authorize the meeting, in particular because the procedure to apply for authorization was unclear; nonetheless, the meeting took place as planned, in the presence of the police; another meeting was subsequently organized without any intervention of the authorities;
    • - the events of 1 December 2002 resulted from a misunderstanding between CITA and the local authorities; the vice-chief of the CITA branch stated his intention to establish good relationships with the local authorities.
  4. 182. The second record concerns the interview of the chief of the directorate of education, youth and sport, Ms. Phat Thorny, who provided the following information to the working group:
    • - she denied having issued a letter to the school director to ban teachers from participating in the activities of CITA; the record then makes reference to a letter No. 2710 of 11 December 2003, in the following terms: "[the directorate of education, youth and sport] has never issued letter No. 2710 dated 11 December 2003 on the activities of a few associations which have been disturbing the process of teaching and other educational institutions";
    • - the directorate of education, youth and sport received a report on the workshop relating to the establishment of the CITA branch in Kampong Chhnang province; according to the report, the workshop had taken place the whole morning of 1 December 2002, with approximately 200 participants; only 104 persons voted.
  5. 183. The third record relates to the interview of the chief of police of the Kampong Chhnang province, Mr. Touch Narong, who provided the following information to the working group:
    • - upon being informed of the meeting, he recommended that CITA applied for the necessary authorization to that end, for safety and security reasons;
    • - despite the absence of authorization, the meeting took place; he was obliged to send 15 police officers to guarantee security since 150 persons attended the meeting;
    • - the meeting took place the whole morning: speakers were used and the participants took a vote, without any interference, to establish the branch executive committee and to adopt the statutes of the association.
      • Case of 10 December 2002 - Kompong Thom province
    • 184. The Government denies the allegations. No conflict arose between the local representatives of CITA and the local authorities. The case rather stemmed from a lack of cooperation between the parties and the fact that they did not clearly determine their respective responsibilities. In this respect, the Government insists that CITA failed to submit a proposal to obtain prior authorization; nevertheless, the authorities did not take any decision with respect to the meeting, nor did they issue any kind of guideline.
  6. 185. The Government submits the records of two meetings, both of which took place on 13 January 2004. The first meeting was held between the inter-ministerial working group and representatives of the local authorities. (As an aside, it should be noted that, during the meeting, information was provided not only on the events of 10 December 2002 but also on those of 6 April 2003, since they concerned the same province and therefore the same authorities. However, the translation of the record does not always allow a clear understanding as regards to which event each piece of information relates. Statements which are more likely to concern the events of 6 April 2003, will be reflected below). As far as the events of 10 December 2002 are concerned, the following information was provided by the second governor of the province’s Cabinet, Mr. Kong Bunthon, the vice?chief of the directorate of education, youth and sport, Mr. Kem Visoth, and the chief of police, Stoeung Sen district, Mr. Srey Puthi:
    • - the second governor of the province stated that he had ordered the police to undertake mediation in relation to the meeting held in the premises of the Sroyov high school; the second governor indicated that police acted properly towards the trade union officials and that the meeting was allowed to take place;
    • - the vice-chief of the directorate of education, youth and sport confirmed that his directorate had not allowed CITA to hold a meeting within the premises of the school, to preserve the neutrality of the institution; it seems that he also made reference to CITA’s disagreement with a policy of the MOEYS and that, in response, the directorate had instructed the director of Sroyov high school not to allow "any activity in the school";
    • - the chief of police declared that the meeting at the Sroyov high school had taken place from 2 p.m. to 4 p.m. and that approximately 20 teachers participated in the meeting; seven police officers were present for security reasons.
  7. 186. During the second meeting, the working group undertook the interview of three members of CITA working at the Sroyov high school: Mr. Khout Sokhoeun, Mr. Cheam Leng and Mr. Sreng Dara. The group reached the following conclusions:
    • - CITA did not obtain the necessary authorization to organize the meeting primarily because the public authorities were not able to ascertain whether the meeting would create risks for the security and the stability of the area;
    • - the meeting of 10 December did not take place as originally planned; but it was carried out in front of the school gate from 1.30 p.m. to 3.30 p.m. without any interference from the authorities; a few police officers were "invited by CITA" to participate;
    • - after the first meeting, CITA was able to organize seven other meetings in different places without any obstruction from the authorities and this is still the case.
      • Case of 22 December 2002 - Phnom Penh city
    • 187. The Government rejects the allegations and states that the director of the school never threatened CITA, but simply advised the teachers to comply with internal rules. On the other hand, the president of CITA entered the school premises without permission to do so and caused problems to the school’s administration during working hours.
  8. 188. The Government has attached records of two meetings conducted by the inter-ministerial group on 23 January 2004. The first record relates to the interview of five teachers of "the Chak Enre 2 primary school": Ms. Yim Mich, Ms. Chan Nary, Ms. Rey Sochenda, Ms. Ek Sophea and Ms. Loeung Bophan. One of the teachers provided the following information:
    • - she confirmed that she had participated in a demonstration on 16 December 2002 for improvement of her living conditions; she had not sought authorization from the school director because she was convinced that the latter would have refused to grant it;
    • - after the demonstration, the teachers and the director discussed the matter and teachers’ duties and obligations; the teachers’ absence had no further consequences.
  9. 189. The second record relates to the interview of the school director, Mr. Suy Saroeun, who provided the following information:
    • - on 16 December 2002, 16 teachers were absent from work and this created difficulties in the functioning of the school;
    • - the teachers concerned were reminded of the rules in force in the school and no further incidents occurred.
      • Case of 1 March 2003 - Kandal province
    • 190. The Government does not agree with CITA’s views on the matter. The school director neither threatened CITA’s president nor removed him from the school. He merely abided by internal rules, all the more since at the time the school was conducting examinations.
  10. 191. The Government has attached records of two meetings conducted by the inter-ministerial working group, both of which took place on 20 January 2004. During the first meeting, the director of the Hun Sen Sa Ang high school, Mr. Chhi Kong was heard and provided the following information:
    • - on 1 March 2003, the school was an examination centre and any person whose presence was not required for that purpose was not allowed to enter the school; at the time, the director had been informed that documents had been distributed and that this had adversely affected the discipline necessary for the examination to take place; as a result, he ordered the guard to stop the distribution and invited the persons who were responsible to leave the school; it was only at this time that he learned that his interlocutor was the president of CITA;
    • - the director had often advised the president of CITA not to carry out trade union activities during working hours.
  11. 192. Two members of CITA, Ms. Heng You and Mr. Koun Nhoun, who worked at the Hun Sen Sa Ang high school were interviewed during the second meeting and provided the following information:
    • - on 1 March 2003 the president of CITA entered the school’s premises without permission, as he had previously worked in the school and was used to having free access; on this particular day, the school was used as an examination centre and access was strictly restricted to the persons concerned with the examination; the school director asked the security guard to invite the president of CITA to leave the school;
    • - after this event, the president of CITA could have access to the school’s premises, in the normal way.
  12. 193. The working group and the two teachers agreed in conclusion that the director of the school’s behaviour was unexceptional, no serious mistake had been made and that the incident was the result of a misunderstanding.
    • Case of 6 April 2003 - Kompong Thom province
  13. 194. The Government indicates that the provincial authority had issued a letter under which CITA was not authorized to conduct the meeting for security reasons. The reason for such a decision was that CITA had submitted insufficient details to the competent authorities, merely informing them that it intended to hold a meeting. Since then, CITA has organized its meetings without any problem whatsoever.
  14. 195. Regarding the working group’s examination of the allegations, in light of the record of the meeting of 13 January 2004 with the abovementioned local authorities, the following information is assumed to relate to the events of 6 April 2003:
    • - the second governor of the province stated that, in refusing to allow CITA to hold its meeting, he had merely applied the law on demonstrations; this was also due to the fact that CITA had not applied for the required authorization; further, the Ministry of Interior had not authorized the opening of CITA’s branch;
    • - the chief of the province’s Cabinet underlined that the provincial authorities specifically requested CITA to apply for the required authorization to organize the convention, rather than merely informing them that it was going to hold a meeting; further, CITA rendered public the name of its branch before applying for authorization; CITA should abide by the law when establishing a local branch.
      • Case of 26 June 2003 - Pursat province
    • 196. The Government contends that the authorities did not breach CITA’s rights. They had merely exercised their duties in relation to the protection and the maintenance of the social order. CITA had not fulfilled correctly its own responsibilities and should have respected the authorities’ responsibility regarding the protection of social order.
  15. 197. The inter-ministerial working group held three meetings. The first meeting took place on 14 January 2004, to interview the chief of the directorate of education, youth and sport, Mr. Theam Lim Eng, who provided the following information:
    • - he had never impeded members of CITA in carrying out their activities;
    • - letter No. 1061, dated 24 June 2003, was delivered by the directorate to the chief of the association branch underlining that the provincial authority had not authorized the seminar;
    • - after the events surrounding the holding of the seminar, the local branch of the association carried out its activities without interference;
    • - on a general level, CITA should be reminded not to undertake any activity during school working hours but during its members’ free time.
  16. 198. A meeting was then held on 15 January 2004 to interview the chief of the province’s Cabinet, Mr. Vong Sam Ol, who provided the following information:
    • - CITA informed the Cabinet that it was going to organize a seminar from 26 to 28 June 2003, in a letter dated 14 June 2003, but without submitting enough information; because of this insufficient information, the Cabinet requested the association to complete the file; since it had not received the supplementary information, on 24 June 2003, the Cabinet issued a letter declaring that the seminar was not authorized, for security reasons linked, it seems, to the holding of a national election;
    • - when an association or an organization wishes to hold a meeting or a seminar, it must first seek authorization and support its request with all the necessary documentation.
  17. 199. Another meeting was held on 15 January 2004 with the chief and vice-chief of the local representation of CITA, Mr. Yeap Seng and Ms. Kim Darani. The two trade union officials and the working group agreed on the following points:
    • - the seminar of 26 June 2003 was not held because of lack of understanding between the local authorities and CITA; the local authorities did not understand the position of the association and the latter did not provide the necessary information to obtain authorization to organize the seminar;
    • - the local authorities and the association did not intend to interfere with each other’s responsibilities and duties; on the other hand, CITA’s duties must be clarified and there should be no interference with the association’s activities based on freedom of association and carried out outside working hours;
    • - the association suggested that its activities should not be threatened or impeded when being undertaken outside working hours and teachers’ obligations should be defined clearly.
  18. 200. The Government concludes by underlining that CITA’s allegations are not founded. Misunderstandings had indeed arisen between CITA and the local authorities but only for a short period of time at the beginning of the association’s activities. The Government adds that the new representatives of CITA had little experience when they started their duties and failed to comply with national regulations administered by the national authorities.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 201. The Committee notes that the case concerns the recognition of, and respect for, teachers’ trade unions rights by public authorities, in both law and in practice.
    • Compatibility of the Common Statute of Civil Servants with Conventions Nos. 87 and 98
  2. 202. CITA indicates that teachers are governed by the Common Statute of Civil Servants and contends that this law is incompatible with Conventions Nos. 87 and 98. In particular, there is no protection of trade union members and leaders against anti-union discrimination, nor is there any recognition of public employees’ right to collective bargaining. Noting that the Government has not replied to the legal issues raised in the complaint, the Committee will examine the provisions of the Common Statute of Civil Servants, in order to determine whether it guarantees public employees’ rights to freedom of association and collective bargaining, in accordance with the commitments undertaken by the ratification by Cambodia of Conventions Nos. 87 and 98.
  3. 203. The Committee notes that this is the first time that the question of freedom of association and collective bargaining rights in the Cambodian civil service is brought before it. It also notes that the Common Statute of Civil Servants was adopted before the Labour Law of 1997 and before the country’s ratification of both Conventions Nos. 87 and 98.
  4. 204. The Committee notes that section 1 of the Labour Law excludes from its scope some categories of public employees, including those governed by the Common Statute of Civil Servants. While in the present case the Committee is only called upon to examine the provisions of this latter law, it wishes to recall that public servants, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 213]. The Committee will also refer the Government to the comments made by the Committee of Experts on the Application of Conventions and Recommendations, at its November-December 2003 session, on the necessity of guaranteeing the right to organize of public employees other than those falling under the scope of the Common Statute of Civil Servants (see the report of the Committee of Experts to be submitted to the Committee on the Application of Standards, at the 92nd Session of the International Labour Conference).
  5. 205. The Committee observes that the Common Statute of Civil Servants contains only one provision, article 36, which touches upon civil servants’ right to organize. Under this provision, "any civil servant may join or participate in the management of an association authorized by law". This provision may well be the legal basis on which CITA has been recognized by the public authorities as a professional organization. The parties did not specify whether any text has been adopted under article 36 to govern in more detail civil servants’ associations. While the Labour Law explicitly recognizes workers’ rights to organize and to collective bargaining, the Committee notes that, in contrast, the Common Statute of Civil Servants: (i) does not refer explicitly to associations aiming to further and defend civil servants’ occupational interests, let alone to trade unions; (ii) does not detail the organization, the functioning and the activities of these associations referred to in article 36; and (iii) does not make any mention of collective bargaining and of protection against anti-union discrimination.
  6. 206. The Committee therefore draws the Government’s attention to the following. The standards contained in Convention No. 87 apply to all workers "without distinction whatsoever", and are therefore applicable to employees of the State. It was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since workers in both categories should have the right to organize for the defence of their interests [see Digest, op. cit., para. 212]. The difference in treatment by the national legislation between workers falling under the Labour Law and civil servants, combined with the absence of an explicit mention of the latter’s right to establish and join occupational organizations, places civil servants’ right to freedom of association in a precarious position. Such a situation can only engender practical difficulties of the kind mentioned in the complaint, if not amount to arbitrariness, to the detriment of civil servants’ occupational organizations, their officials and their members.
  7. 207. The Committee will now turn to the specific issues arising from the complaint.
  8. 208. With respect first to the issue of prior authorization for the establishment of a union, the Committee notes that, in relation to the convention scheduled for 6 April 2003, the provincial authorities referred to the absence of authorization by the Ministry of Interior for the opening of the local branch. Under Article 2 of Convention No. 87, workers and employers have the right to establish and join "organizations of their own choosing without previous authorization". Indeed, the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization [see Digest, op. cit., para. 244]. Although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations [see Digest, op. cit., para. 248]. Moreover, an appeal should lie with the courts against any administrative decision concerning the registration of a trade union. Such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by authorities responsible for registration [see Digest, op. cit., para. 264]. These provisions and principles apply equally to the constitution of a trade union’s branch.
  9. 209. Concerning collective bargaining rights of public employees and their right to be protected against anti-union discrimination, the Committee underlines the comments of the Committee of Experts that, under Convention No. 98, public employees other than those engaged in the administration of the State should benefit from the guarantees set out in the Convention. The Committee would recall in this respect that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies) as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions. Only the former category can be excluded from the scope of Convention No. 98 [see Digest, op. cit., para. 794].
  10. 210. For public employees falling under the scope of Convention No. 98, the Committee underlines that, under Article 1 of the Convention, the Government should take explicit measures to ensure that civil servants enjoy adequate protection against acts of anti-union discrimination in respect of their employment. Firstly, such a protection should cover not only hiring and dismissal, but also any discriminatory measure during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker [see Digest, op. cit., para. 695]. Secondly, it is particularly desirable in the case of trade union officials because, in order to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on the account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect be given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724]. Thirdly, legislation should lay down explicit remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98 [see Digest, op. cit., para. 697]. Finally, the Committee must emphasize that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed; workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., paras. 739 and 741].
  11. 211. As far as collective bargaining is concerned, the Committee recalls that under Article 4 of the Convention, measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers, or employers’ organizations, and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Digest, op. cit., para. 781]. Convention No. 98 and, in particular, Article 4 thereof concerning the encouragement and promotion of collective bargaining, applies both to the private sector and to nationalized undertakings and public bodies [see Digest, op. cit., para. 792].
  12. 212. Regarding the specific case of teachers, the Committee has recalled on numerous occasions that they should fully enjoy trade union rights. In particular, the Committee has emphasized the importance of promoting collective bargaining in the education sector [see Digest, op. cit., para. 804; 310th Report, Case No. 1928 (Canada/Manitoba), para. 175; 311th Report, Case No. 1951, (Canada/Ontario), para. 220].
  13. 213. In light of the above, the Committee considers that the Government should take the necessary measures to amend the Common Statute of Civil Servants so as to fully guarantee the right to organize and the right to collective bargaining of civil servants, consistent with Conventions Nos. 87 and 98 and the principles of freedom of association recalled above. The Committee deems it appropriate to refer the legislative aspects of this case to the Committee of Experts and reminds the Government that the technical assistance of the Office will be at its disposal if it so wishes to avail itself of this opportunity.
    • Factual allegations
  14. 214. The Committee notes that CITA alleges interference in its activities by the local public authorities and the police. More specifically, CITA alleges that it was prevented from exercising its right to assembly and from having access to workplaces to meet teachers. CITA contends that in all cases it duly informed the competent authorities one week in advance. Allegations of anti-union discrimination are also submitted. The Committee notes that the Government constituted an inter-ministerial working group to review the allegations and that its observations can be summarized as follows: (i) no conflict occurred between CITA and the local authorities, but there were misunderstandings at the beginning of CITA activities when its representatives were inexperienced; (ii) these misunderstandings were for the most part due to CITA’s failure to comply with national legislation and schools’ internal rules and, more specifically, to properly apply for authorization to hold meetings and open local branches or to seek permission to access workplaces during working hours; (iii) in some of the cases cited by CITA, meetings did eventually take place either at the time mentioned in the complaint or at a later date; and (iv) in general, public authorities merely carried out their responsibilities in the interests of public order or applied schools’ internal rules.
  15. 215. The Committee must make the following preliminary considerations before examining in turn the issues of police intervention in trade union matters, workers’ organizations’ right to assembly, workers’ organizations’ right of access to workplaces and anti-union discrimination. The Committee notes that the complaint points to several difficulties that arose, from December 2002 until June 2003, between CITA and different local authorities, and which all concerned the organization of meetings or access to workplaces by CITA. The Committee notes that information provided by the Government confirms that these meetings or instances of access to workplaces had trade union objectives and that they all involved intervention on the part of the local authorities and the police. The Committee is also mindful of the conclusions it has reached on the insufficient legislative provisions in relation to civil servants’ trade union rights and of the consequences that may be thus engendered in practice.
  16. 216. Turning now to the specific issues arising from the complaint, the Committee wishes to recall that in general the use of forces of order during trade union demonstrations should be limited to cases of genuine necessity [see Digest, op. cit., para. 146]. The Committee accordingly requests the Government to bring this principle to the attention of the police, the authorities responsible for authorizing public meetings, and school directors or head teachers.
  17. 217. Turning now to the issues of the right to assembly and access to workplaces, the Committee notes that it seems that CITA has merely "informed" one week in advance the local authorities of its intention to organize meetings, while the Government requires CITA to submit a "proposal" to be authorized by the competent authorities. In this context, the Committee will commence its examination by clarifying the rights and obligations of trade unions in such instances, in the following manner.
  18. 218. With respect first to the right to assembly of a workers’ organization, the Committee refers to the conventions of 1 December 2002 and 6 April 2003 held to establish local branches, the meeting of 10 December 2002 to explain the trade union’s role (which also involves a question of access to a workplace) and the seminar of 26 June 2003. With the exception of the meeting of 10 December 2002, which was to be organized in the premises of a public school, the Committee has not been informed of the exact locations of the other meetings.
  19. 219. A distinction must be drawn between meetings held within trade union premises and those held in public locations: while the first kind of meeting cannot be subject to prior authorization by the authorities, the requirement of prior permission for the second one is acceptable. More specifically, the right of occupational organizations to hold meetings in their premises to discuss occupational questions, without prior authorization and interference by the authorities, is an essential element of freedom of association and the public authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered [see Digest, op. cit., para. 130]. With respect to public meetings, the Committee would like to recall the following principles: firstly, the right to organize public meetings constitutes an important aspect of trade union rights [see Digest, op. cit., para. 133]. Secondly, the requirement of administrative permission to hold public meetings and demonstrations is not objectionable per se from the standpoint of the principles of freedom of association. The maintenance of public order is not incompatible with the right to hold demonstrations so long as the authorities responsible for public order reach an agreement with the organizers of a demonstration concerning the place where it will be held and the manner in which it will take place [see Digest, op. cit., para. 138]. Thirdly, permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused [see Digest, op. cit., para. 139]. Finally, organizations must observe the general provisions relating to public meetings, which are applicable to all. This principle is contained in Article 8 of Convention No. 87, which provides that workers and their organizations, like other persons or organized collectivities, shall respect the law of the land [see Digest, op. cit., para. 140].
  20. 220. With respect to access to workplaces, the Committee notes that CITA has reported three instances in which such access was at stake: the meeting of 10 December 2002 to explain the role of the trade union, the events of 22 December 2002 when the president of CITA was seeking to bring assistance to teachers, and the events of 1 March 2003 concerning another of his visits to a school. In the course of the examination of another case, the Committee has underlined that for the right to organize to be meaningful, the relevant workers’ organizations should be able to further and defend the interests of their members, by enjoying such facilities as may be necessary for the proper exercise of their functions as workers’ representatives, including access to the workplace of trade union members [see 329th Report, Case No. 2198 (Kazakhstan), para. 681, see also Digest, op. cit., para. 954]. Access should not of course be exercised to the detriment of the efficient functioning of the administration or public institutions concerned. Therefore, in such instances, the Committee has often indicated that the workers’ organizations concerned and the employer should strive to reach agreements so that access to workplaces, during and outside working hours, should be granted to workers’ organizations without impairing the efficient functioning of the administration or the public institution concerned.
  21. 221. In light of the above, the Committee requests the Government to take any measures deemed appropriate so that the local authorities, the police, as well as the local educational administrations and institutions are made fully aware of the above principles in relation to the holding of trade union meetings and the access by trade unions to workplaces. The Committee also requests CITA to bear in mind these principles in its future activities. Finally, the Committee requests the Government to invite the competent local authorities, including the educational authorities, and CITA to negotiate future agreements on the place where trade union public meetings will be held and the manner in which they will take place, as well as on facilities to be enjoyed by CITA, including access to workplaces, for the furtherance and defence of its members’ occupational interests.
  22. 222. With respect to the two allegations relating to anti-union discrimination, the Committee notes the allegation according to which a letter was sent by a senior officer of the local administration of the Ministry of Education, Youth and Sport (MOEYS) with a view to instructing teachers not to join the complainant organization. The Committee notes also that, in relation to the events of 22 December 2002, it is alleged that teachers have been intimidated and threatened for having participated in a non-violent demonstration on 16 December 2002. From the Government’s reply, the Committee notes that the senior officer denied having sent the alleged letter. It also notes from the record produced by the Government that the participants in the demonstration of 16 December 2002, stated that they had simply been reminded of their statutory obligation since they had participated in the demonstration without authorization from the school director and that their absences had no further consequences. The Committee notes that it is not clear from the information placed at its disposal whether the demonstration in question had trade union objectives.
  23. 223. In view of the above contradictory and incomplete evidence, the Committee can only recall that no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present [see Digest, op. cit., para. 690] and refer the Government to its earlier conclusions on the necessity of adopting explicit measures to protect effectively civil servants from all acts of anti-union discrimination.
  24. 224. The Committee concludes its examination by drawing the Government’s attention to the two following issues. Firstly, given that teachers’ trade union rights are at stake in the present case, the Committee cannot ignore the lack of understanding on the part of officials of the local educational administration in dealing with CITA, which at times even seems to amount to an obstructive attitude to trade unions. This is reflected in the difficulties faced by CITA, which are not only recurrent but also occurred in more than one province. Furthermore, the Committee notes the governmental record of the hearing of a senior officer of the local educational administration, in relation to the events of 10 December 2002, which refers to CITA’s disagreement with a policy of the MOEYS, as a reason for the prohibition of any of its activities in a particular school. The Committee therefore requests the Government to take specific measures, including training activities, so that these officials, including school directors, are fully apprised of the provisions of Conventions Nos. 87 and 98 and the principles underlined in this report concerning teachers’ rights to freedom of association and collective bargaining. Special mention should be made of paragraph 2 of Article 3 of Convention No. 87, under which "the public authorities shall refrain from any interference which would restrict [the right of workers’ organizations to organize their activities] or impede the lawful exercise thereof". In addition, the Government should diffuse widely future amendments to the Common Statute of Civil Servants requested earlier in this report.
  25. 225. Finally, the Committee would like to make the following observation on the method used by the Government to review the factual allegations brought before the Committee. The Committee notes the process put in place by the Government to investigate these allegations in a thorough manner. Nonetheless, to avoid any doubt being cast, such a process should always be established with the intention of guaranteeing independence and impartiality. Thus, the persons appointed to conduct the investigation should be unconnected with the allegations and the individuals who will be expected to give evidence. An inter-ministerial working group composed of officials of the Ministry of Education, in direct hierarchical line with the teachers heard as witnesses, places individuals in the invidious position of discussing trade union matters with their hierarchy. Having regard to the particular circumstances of the case, an investigative body constituted in this manner may be perceived by the workers concerned as being devoid of sufficient guarantees of independence and impartiality. The Committee trusts that respect for this principle will be ensured in the future by the Government.

The Committee's recommendations

The Committee's recommendations
  1. 226. In light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a) The Committee considers that the Government should take the necessary measures to amend the Common Statute of Civil Servants so as to guarantee fully the right to organize and the right to collective bargaining of civil servants, consistent with Conventions Nos. 87 and 98, and the principles of freedom of association recalled in paragraphs 206-212 above; once they have been adopted, the Government should diffuse widely these amendments in particular amongst the local public authorities, including the local educational administration.
    • (b) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case and reminds the Government that the technical assistance of the Office will be at its disposal if it so wishes to avail itself of this opportunity.
    • (c) The Committee requests the Government to bring the principle of freedom of association on police intervention in trade union matters (paragraph 216 above) as well as those relating to the holding of trade union meetings (paragraph 219 above) and the access by trade unions to workplaces (paragraph 220 above), to the attention of the police and the authorities responsible for authorizing public meetings.
    • (d) The Committee requests the Government to take specific measures, including training activities, so that officials of the local educational administration, including school directors, are fully apprised of the provisions of Conventions Nos. 87 and 98, and the principles of freedom of association, with respect to teachers’ rights to freedom of association and to collective bargaining.
    • (e) The Committee requests CITA to bear in mind, in its future activities, the principles of freedom of association in relation to the holding of trade union meetings (paragraph 219 above) and the access by trade unions to workplaces (paragraph 220 above).
    • (f) The Committee requests the Government to invite the competent local authorities (including the local educational administration) and CITA to negotiate future agreements on the place where trade union public meetings will be held and the manner in which they will take place, as well as on facilities to be enjoyed by CITA, including access to workplaces for the furtherance and defence of its members’ occupational interests.
    • (g) Noting that the Government has put in place a process to investigate thoroughly the factual allegations, the Committee trusts that the Government will ensure that such a process contains guarantees of independence and impartiality.
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