Informe provisional - Informe núm. 57, 1961

Caso núm. 221 (Reino Unido de Gran Bretaña e Irlanda del Norte) - Fecha de presentación de la queja:: 13-FEB-60 - Cerrado

1. 60. The complaint of the Forces Local Employees' Union (Aden) is contained in two communications dated 13 February and 1 April 1960, that of the W.F.T.U in a communication dated 5 September 1960 and that of the I.C.F.T.U in two communications dated 30 September and 7 November 1960. In a communication dated 13 February 1961 the Government forwarded its observations on the complaints presented by the W.F.T.U and the I.C.F.T.U. Its observations on the complaint of the Forces Local Employees' Union are contained in a communication dated 13 April 1961.
2. 61. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 87), 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). The Government of the United Kingdom has declared the provisions of all three Conventions to be applicable to Aden without modification.

A. A. The complainants' allegations

• Allegations relating to a Strike of Civilian Employees of the Armed Forces and to Non-Recognition of Their Union
  62. 62 The Forces Local Employees' Union is a registered union which organises civilian employees of the armed forces in Aden-employees of the Aden Colony Forces, civilian " followers " of the Aden Protectorate Levies, employees of Forces' Clubs and the Navy, Army and Air Force Institutes (N.A.A.F.I.), and the employees of the firm of electrical contractors attached to the armed forces-and claims some 5,500 members.
  63. 63 On 11 February 1960 the 300 members of the union employed by the Aden Protectorate Levies came out on strike, because, it is alleged, the Commander of the Levies refused to recognise the union as their representative and prohibited the workers exercising the right to organise. The complainants declare that, on 13 February 1960, soldiers of the A.P.L assaulted and forcibly placed male and female strikers in trucks and drove them to the Office of the Commander, where they were told that they were dismissed for refusing to resign from the union and to call off the strike, and that complaints of assault made by the women to the Labour Commissioner were merely referred to the A.P.L. Commander, the governmental authorities saying that they had no jurisdiction.
  64. 64 The complainants, while admitting that these employees are technically " enlisted followers ", who sign the same recruitment forms as do soldiers, emphasise that they are in reality civilians, and lists the various grievances which, together with the issue of union recognition, led to the dispute-inferior pay, gratuity and promotion prospects compared with the soldiers, inferior hospital and medical facilities, poor compensation for industrial accidents, the practice of the responsible authorities of giving contracts to bad employers, bad housing and poor hygiene.
  65. 65 In its communication dated 13 April 1961 the Government confirms that, as the complainants admit, the 300 persons referred in the allegations are " enlisted followers " and, as such, form part of the military force which is subject to the Aden Protectorate Levies Ordinance-they are, therefore, subject to military discipline in the same way as soldiers, and the same channels for the redress of grievances and complaints are open to them. On 13 February 1960 certain enlisted followers refused duty and were discharged from the Service. The Government declares that they had been warned previously that they would be discharged if they continued to disobey lawful orders. Only one of their number was a woman; the Government denies that she or any other woman was roughly treated as alleged. In conclusion the Government states that, although a special committee was set up in January 1960 to make known the followers' views, their representatives ignored assurances that the Commander of the Levies and the governmental authorities were always ready to consider proper representations and that the Commander was, at the material time, examining certain conditions of service about which the followers had complained.
  66. 66 The Committee observes that only 300 of the 5,500 members of the Forces Local Employees' Union were involved in the matters alleged, these persons being, in fact, regarded as an integral part of the Aden Protectorate Levies and subject to the same military discipline as soldiers. The union appears to be a registered union and the issue of union recognition seems to have arisen only in relation to the military authorities who are, in fact, the direct employers of the 300 persons in question. While it may be somewhat unusual for civilian employees of the armed forces to be enlisted in the military sense, that is the position in Aden; in order to obtain such employment they sign a military recruitment form but there is no evidence to lead the Committee to suppose that recruitment is not entirely voluntary. The Committee, therefore, considers that in this particular instance, the 300 enlisted followers referred to in the allegations are members of the armed forces. Article 9 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), provides that the extent to which the guarantees provided for in the Convention shall apply to the armed forces shall be determined by national laws or regulations. In fact, the national law subjects the enlisted followers, in the same way as serving soldiers, to the military discipline and procedures for the redress of grievances prescribed by the Aden Protectorate Levies Ordinance.
  67. 67 In these circumstances the Committee recommends the Governing Body to decide that these allegations do not call for further examination.
  68. 68 In consequence the Committee considers that, in the absence of any evidence of interference with the exercise of legitimate trade union rights, it is not called upon to examine the issues raised in the allegations with regard to the pay, promotion, hospitalisation and accommodation of enlisted followers.
• Allegations relating to a General Strike and to the Aden Industrial Relations (Conciliation and Arbitration) Ordinance, 1960
  69. 69 The W.F.T.U declares that on 15 August 1960 the Industrial Relations (Conciliation and Arbitration) Ordinance was enacted and that the ordinance is an unjust law which, among other things, prohibits strikes. In protest a general strike was called which lasted for three days, after which 150 workers were dismissed for taking part in the strike. The complainants consider these matters to be in violation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by the Government of the United Kingdom and declared applicable to Aden.
  70. 70 The I.C.F.T.U deals in detail with the same issues. It is alleged that the ordinance introduces a system of compulsory arbitration by an industrial court and makes strikes and lockouts illegal before, during and following arbitration procedure except where that procedure does not apply. It does not apply, state the complainants, where there is in existence, to the satisfaction of the President of the Industrial Court, an agreement providing satisfactory arrangements for the settlement of any wage dispute and where an exemption certificate is therefore granted; where the Crown is a party to the dispute and is not prepared to accept arbitration on the matters in dispute; where the occupation, trade or industry is covered by a Wages Council; or where the Court refuses to take cognisance of the dispute because in its opinion the employer has failed to negotiate or to attempt to negotiate in good faith.
  71. 71 The ordinance, passed by the Legislative Council on 15 August 1960, received the Governor's assent on the following day. It contained a provision that it would come into force on such date as the Governor in Council might by notice in the gazette declare. The general strike in protest against the law was called by the Aden T.U.C on 15 August 1960. On 17 August negotiations took place between the Governor and the Aden T.U.C and the latter, it is alleged, agreed to call off the strike on 18 August, to promote good industrial relations, to encourage agreements establishing procedures for the settlement of disputes and to set up its own Directorate which would advise affiliated unions on collective bargaining and co-operate with the Labour Commissioner in the investigation of the causes of strikes. But negotiations broke down, it is alleged, when the Governor made deferment of the date bringing the ordinance into force dependent on guarantees that no further strikes would be called in protest against the new law, because the T.U.C could not assume responsibility for strikes that might be called without its knowledge or agreement, while the Governor would not make any statement concerning the protection of strikers against dismissal or other disciplinary action. With respect to the last point the complainants state that many workers were dismissed on 15 August 1960 for striking and others re-engaged at a reduced wage. They contend that, in a letter dated 2 September from the Chief Secretary to the Aden T.U.C, it was stated that the disciplinary measures must stand but that the Aden-born employees concerned would not be debarred from the possibility of government employment at a later stage. The complainants condemn this as discriminatory. The ordinance came into force on 18 August 1960. The T.U.C called off the strike to avoid clashes with the police.
  72. 72 The complainants contend that the provisions of the ordinance referred to in paragraph 71 above violated trade union rights and that, where trade unions are compelled to conclude agreements to establish satisfactory negotiating machinery or to face compulsory arbitration and a ban on strikes, there can be no free collective bargaining, such compulsion being entirely at variance with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and especially with Article 4 of that Convention.
  73. 73 The complainants contrast the situation in Aden with that subsisting in some countries where the principle of compulsory arbitration has been introduced with the agreement of the trade unions, stating that in Aden the unions opposed the enactment and that a majority of the elected members of the Legislative Council (which consists partly of elected members and partly of members appointed by the Government) wished consideration of the Bill, when it was introduced to the Council, to be postponed for four months. The complainants point out that, despite the breakdown in negotiations, the T.U.C did set up the Directorate referred to earlier in order to help its affiliated unions to set up negotiating machinery by agreement, but that the existence of the ordinance may lead employers to prefer to invoke compulsory arbitration machinery. Although the ordinance authorises the Industrial Court to reject cases where the employer has failed to negotiate in good faith, this is a question of fact which it is difficult to prove. In the view of the complainants, therefore, as expressed in their communication dated 30 September 1960, the ordinance encourages employers to disregard voluntary negotiating machinery, contrary to the said Convention No. 98. In their communication dated 7 November 1960 the complainants contend that this forecast has already been proved justified and that employers are defeating the procedure of collective bargaining and trying to bring disputes before the Industrial Court. Citing the specific case of an agreement which would have been signed, but for the enactment of the ordinance, between Aden Airways and the Civil Aviation Employees' Union, the complainants contend that the ordinance has not encouraged collective bargaining but has hampered industrial relations: thus the avowed purpose of the ordinance has become illusory.
  74. 74 In its reply, dated 13 February 1961, the Government of the United Kingdom begins by stating that it welcomes this opportunity to remove a number of misunderstandings concerning the ordinance. The Government forwards a copy of an Aden Government White Paper explaining the essential purpose of the ordinance as being to encourage the development of voluntary collective bargaining and the establishment of working conditions and wages by collective agreement. After citing the provisions of the ordinance already referred to in paragraph 70 above, the Government expresses its disagreement with the assessment made by the I.C.F.T.U and declares that, on the contrary, the ordinance precisely fulfils the objectives of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Government does not understand the I.C.F.T.U's contention that the ordinance infringes the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as it imposes no restrictions on freedom of association and expressly protects workers against acts of anti-union discrimination.
  75. 75 Again referring to the White Paper, the Government declares that the situation leading up to the enactment of the ordinance was a very troubled one. The White Paper itself reviews the policy of recent years of encouraging the development of joint negotiating machinery and states that it was the failure of both sides to negotiate joint agreements on this matter, coupled with the refusal of the unions to accept voluntary arbitration or to exhaust the possibilities of negotiation before calling strikes, that led to the outbreaks of strikes in 1959 and 1960. The White Paper, while accepting the right of trade unions to interest themselves in politics, claims that the Aden T.U.C has become too interested in politics of a nature unconnected with the labour movement.
  76. 76 The Government goes on to state that in the six months since the ordinance was enacted the conduct of industrial relations has become more constructive and the Government feels that the views of the I.C.F.T.U on what might take place after the promulgation of the ordinance (see paragraph 73 above) are unjustifiably pessimistic. Several agreements on conditions of employment have been concluded between employers and trade unions, while others are being negotiated. According to the Government, the trade unions have not complained of any case in which they claim the employer has failed to bargain in good faith. In the Government's view it rests with the trade unions and the employers to take advantage of the opportunity to negotiate voluntary agreements which the ordinance provides.
  77. 77 With respect to the dismissals of strikers, the Government gives the following information. All government staff were warned beforehand that any strike against the new legislation would be regarded as inconsistent with their duty as public servants and render them liable to dismissal. On 15 August 1960, when the general strike began, 182 men, nearly all daily paid unestablished labourers; absented themselves and were subsequently dismissed. Of these, 66 have been reinstated since the date (2 September) of the Chief Secretary's letter referred to by the I.C.F.T.U and consideration is being given to reinstating the remainder. While Aden " nationals " have been given priority in the matter of reinstatement, the Government declines to regard this as discrimination, because " no State can be under an obligation to provide employment for foreign nationals ".
  78. 78 It thus appears that the Government proposed to enact an ordinance, making arbitration compulsory in certain disputes and prohibiting strikes and lockouts in certain circumstances, an ordinance which, in the view of the complainants, violates certain Conventions ratified by the United Kingdom in respect of Aden; that in protest, the Aden T.U.C called a general strike and a number of strikers were dismissed, and that while some strikers have been reinstated, priority of reinstatement has been given to Aden-born workers.
  79. 79 The ordinance establishes an Industrial Court for the settlement of trade disputes. The President, to be appointed by the Governor, " shall not ... be subject to the direction or control of any other person or authority " (section 6 (2)), except that appeals on points of law affecting awards lie to the Supreme Court. The President may appoint assessors nominated in equal numbers by each of the parties to a dispute (section 7). The procedures under the ordinance, which are further considered below, do not operate in cases within the jurisdiction of a Wages Council-an issue not relevant to the allegations-or cases in which the President of the Court grants an exemption. An exemption, apparently of a general and continuing nature, from the application of the procedure may be granted by the President, on application by either side, where an agreement has been concluded between the trade union and the employer or employers' organisation concerned which provides satisfactory arrangements for the settlement of any trade dispute that may arise between them (section 8 (1)). Subject to the foregoing, either party may report a trade dispute to the Labour Officer if the dispute is not otherwise determined (section 10 (1)). Conciliation by the Labour Officer ensues, but he must first refer the dispute for settlement by any suitable means of settlement subsisting under an agreement between the parties unless there has been failure to reach a settlement by such means (section 11 (1)). If conciliation fails, the Labour Officer shall report the case to the Industrial Court (section 14 (1)). If the Crown is a party to the dispute it may refuse to accept arbitration (section 14 (2)) - the consequences of this will be explained later. The Court, even now, may allow further time for negotiation (section 14 (4)), and may in any case refuse to take cognisance of the dispute " if in the opinion of the court a party, being an employer or association of employers, to the dispute has failed to negotiate or attempted to negotiate in good faith " (section 14 (5)).
  80. 80 There follow a number of provisions respecting the hearings before the Court and the making of awards, which are binding for not more than two years. Strikes and lockouts are prohibited under section 24 unless (a) an exemption has been granted under section 8 (1) as explained above, or (b) the Court refuses to take cognisance of the dispute under section 14, or (c) the dispute is within the jurisdiction of a Wages Council, or (d) the Crown has refused to submit to arbitration. Section 25 prohibits strikes in breach of contract in essential services-a matter not within the scope of the allegations made.
  81. 81 To sum up the position, therefore, it would seem that if two parties establish by agreement machinery for the settlement of disputes, the existence of such machinery immediately takes them out of the provisions of the ordinance and the procedure is purely voluntary. Otherwise either party-not the authorities-must report the dispute to the Labour Officer in order to set the procedure in motion. But, even in the absence of established voluntary machinery, the ordinary procedure for the negotiation of collective agreements is not excluded-the Labour Officer entertains the dispute if it is not otherwise determined, i.e. by agreement. After this, before the Court hears the matter, every encouragement is given to settlement by negotiation. The provisions concerning the Constitution of the Court would appear to be such as to ensure that it is constituted on an impartial basis.
  82. 82 Under Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Government of the United Kingdom has undertaken, with respect to Aden, that " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ".
  83. 83 While there is a divergence of views between the I.C.F.T.U and the Government as to whether the ordinance will encourage the conclusion of collective agreements or whether, on the contrary, it will cause employers to go to arbitration because they hope it will be to their advantage-a matter on which the Committee feels that it is not called upon to give an opinion-it seems to the Committee that the provisions of the ordinance examined above are not incompatible with Article 4 of the said Convention.
  84. 84 Section 14 (2) of the ordinance permits the Crown to refuse to accept arbitration. The Crown is an important employer in Aden. According to the White Paper forwarded by the Government of the United Kingdom the Government and H.M. Forces in Aden employ 11,640 of the working population of approximately 62,000. The effect of section 14 (2) of the ordinance is that the Crown, as an employer, can cause or allow a dispute with its employees to be settled by arbitration or not according to the attitude that it chooses to adopt in the particular dispute. It therefore has the legal right, like other employers, of being able to report a dispute and thereby prevent a strike if it so desires, but can then, unlike other employers, choose at a later date, after a period of conciliation, to refuse to go to arbitration at a moment when the trade unions, which from that moment are not barred by the anti-strike provisions in the ordinance (except in so far as notice of a strike in all essential occupations is prescribed), are perhaps no longer in a strong position to call a strike. In other words the Crown enjoys, with respect to the application of the compulsory arbitration provisions of the ordinance, a privileged position as an employer both in contrast with its employees and in contrast with other employers.
  85. 85 In this case there are really two allegations concerning the right to strike-one concerns the general strike called in protest against the ordinance on 15 August 1960 and called off on 18 August 1960, the day on which the ordinance came into force, and the dismissals effected in consequence of that strike; the second allegation concerns the provisions of the ordinance restricting the exercise of the right to strike (provisions, of course, not relevant to the legality of the general strike preceding the promulgation of the ordinance). These two issues call for separate consideration.
  86. 86 The general strike on 15 August was called in protest against an enactment. The Committee has always applied the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, and has recommended the Governing Body to affirm, on numerous occasions, that the right to strike of workers and workers' organisations constitutes an essential means of promoting and defending their occupational interests. The Committee, however, has rejected allegations relating to strikes by reason of their non-occupational character or where they have been designed to coerce a government with respect to a political matter or have been directed against the Government's policy and not " in furtherance of a trade dispute". The general strike against the ordinance in the present case was certainly one against the Government's policy but it would seem doubtful whether allegations relating to it could be dismissed at the outset on the ground that it was not " in furtherance of a trade dispute "-the trade unions were in dispute with the Government in its capacity as an important employer which initiated a measure dealing with industrial relations which, in the view of the trade unions, restricts the exercise of trade union rights. On these issues, it would seem, indeed, that opinion in the Legislative Council was divided and that the Government was considering at one stage whether or not the date of coming into force of the ordinance should be postponed if certain guarantees were forthcoming on the trade union side. The real point of grievance, however, relates not to the general strike as such but to the dismissals of strikers. It is evident from the Government's reply that, having taken an unequivocal stand in principle, as shown by the Chief Secretary's letter of 2 September 1960, it then had regard to its desire to bring about an improvement in the existing situation, in which it is common ground that industrial relations were attended by considerable tension, by holding out prospects of subsequent reinstatement of strikers. The Government declares that 66 strikers have been reinstated and that consideration is being given to reinstating the remainder. It would also seem from the Government's reply that the tension has eased somewhat in the last few months.
  87. 87 In these circumstances the Committee recommends the Governing Body to take note of the Government of the United Kingdom's statement that 66 of the 182 employees dismissed for having taken part in the general strike of 15 August 1960 have been reinstated, and that consideration is being given to reinstating the remainder, and to request the Government of the United Kingdom to keep the Governing Body informed of the progress made in the reinstatement of further employees.
  88. 88 With regard to the question of the strike provisions contained in the ordinance of 1960, an important principle emphasised in the past by the Governing Body and the Committee is particularly pertinent. While expressing the general principles concerning strikes referred to in paragraph 86 above, the Committee has emphasised that in exercising the: right to strike, workers and their organisations must have due regard to temporary restrictions placed thereon, e.g. cessation of strikes during conciliation and arbitration proceedings in which the parties can take part at every stage. In doing so, however, the Committee stressed that when restrictions of this kind are placed on the exercise of the right to strike the ensuing conciliation and arbitration proceedings should be "adequate, impartial, and speedy. "
  89. 89 It appears to the Committee, however, having regard to the privileged position of the Crown in such proceedings under the provisions of section 14 (2) of the ordinance (see paragraph 84 above), that the arbitration procedure does not fully comply with this criterion.
  90. 90 The Committee may wish to observe further that the effects of section 14 (2) of the ordinance were also considered, at its meeting in March 1961, by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, which decided to address a direct request to the Government of the United Kingdom in connection with the application of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84).
  91. 91 In these circumstances the Committee may wish to recommend the Governing Body to draw the attention of the Government of the United Kingdom to the importance which it attaches to the principle that, where the exercise of the right to strike is subject to restrictions pending recourse to conciliation and arbitration procedure, such procedure should be adequate, impartial and speedy, and to request the Government, having regard to this principle and to the considerations set forth in paragraphs 84, 86 and 88 to 90 above, to furnish information as to the reasons for the exception in favour of the Crown made in section 14 (2) of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960.
• Allegations relating to the Suppression of a Trade Union Newspaper
  92. 92 It is alleged by the W.F.T.U and the I.C.F.T.U that the licence of Al-Amel, the journal of the Aden T.U.C, was revoked on 19 August 1960 and that, in his letter informing the T.U.C of this decision, the Chief Secretary to the Government of Aden stated that, if the labour movement in Aden desired in the future to apply for a licence to publish a newspaper " restricted to labour matters ", the Governor would be willing to entertain an application and to consider on what conditions such a licence might be granted. The I.C.F.T.U declares that an immediate application was made but that, according to its information, no licence has been granted.
  93. 93 The Government confirms these facts. Since the first application was made-to publish the same paper under a new name-no further formal application has been received. The Government adds that if any formal application is received " it will be sympathetically considered by the Government of Aden in the light of the conditions arising from past experience ".
  94. 94 In certain previous cases' the Committee has expressed the view that the right to express opinions through the press or otherwise is clearly one of the essential elements of trade union rights. It is not clear either from the complaints or from the Government's reply exactly why the licence of the newspaper of the Aden T.U.C was revoked, but it would seem probable from the date of the revocation-19 August 1960-that the matter was related to the other events which took place at that time, namely the general strike against the ordinance of 1960, the dismissal of strikers and the bringing into force of the ordinance.
  95. 95 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government of the United Kingdom to the importance which the Governing Body has always attached to the freedom of the trade union press, to express the hope that, in view of the Government of the United Kingdom's statement that a future application from the Aden T.U.C to publish a newspaper will be sympathetically considered by the Government of Aden, the freedom of the trade union press in Aden will shortly be re-established, and that the Government of the United Kingdom will keep the Governing Body informed of further developments in this connection.

The Committee's recommendations

1. 96. In all the circumstances the Committee recommends the Governing Body:
   • (a) to decide that, for the reasons indicated in paragraphs 62 to 68 above, the allegations relating to a strike of civilian employees of the armed forces which fall within the competence of the Committee in so far, but only in so far, as they affect the exercise of trade union rights, and the allegations relating to non-recognition of their union do not call for further examination;
   • (b) to take note of the Government of the United Kingdom's statement that 66 of the 182 employees dismissed for having taken part in the general strike of 15 August 1960 have been reinstated and that consideration is being given to reinstating the remainder; and to request the Government of the United Kingdom to keep the Governing Body informed of the progress made in the reinstatement of further employees;
   • (c) to draw the attention of the Government of the United Kingdom to the importance which it attaches to the principle that when the exercise of the right to strike is subject to restrictions pending recourse to conciliation and arbitration procedure, such procedure should be adequate, impartial and speedy; to request the Government, having regard to this principle and to the considerations set forth in paragraphs 84, 86 and 88 to 90 above, to furnish further information as to the reason for the exception in favour of the Crown made in section 14 (2) of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960;
   • (d) to draw the attention of the Government of the United Kingdom to the importance which the Governing Body has always attached to the freedom of the trade union press; to express the hope that, in view of the Government of the United Kingdom's statement that a future application from the Aden T.U.C to publish a newspaper will be sympathetically considered by the Government of Aden, the freedom of the trade union press in Aden will shortly be re-established, and that the Government of the United Kingdom will keep the Governing Body informed of further developments in this connection.