Rapport intérimaire - Rapport No. 66, 1963

Cas no 298 (Royaume-Uni de Grande-Bretagne et d'Irlande du Nord) - Date de la plainte: 15-MAI -62 - Clos

1. 510. The complaint of the Southern Rhodesia African Trades Union Congress, which was addressed directly to the I.L.O, is contained in four communications dated respectively 15 May, 21 May, 23 May and 13 August 1962. The Government of the United Kingdom submitted its observations by a letter dated 7 August 1962.
2. 511. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), and has undertaken with the consent of the Government of Southern Rhodesia to apply these provisions without modification in Southern Rhodesia. The Government of the United Kingdom has also 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), but has reserved its decision regarding the application of the provisions of these Conventions in Southern Rhodesia.

A. A. The complainants' allegations

• Allegations relating to Restrictions Imposed by the Industrial Conciliation Act, 1959, on the Right of Trade Unions Freely to Draw up Their Own Constitutions and Rules
  512. 512 The complainants allege that by reason of the restrictions imposed by the Industrial Conciliation Act of 1959 workers are not free to form trade unions as they wish. According to the complainants, the Government dictates to the workers how they should form their unions and what type of Constitutions they must adopt. The Industrial Conciliation Act, moreover, takes away all the rights of workers' organisations freely to draw up their own Constitutions.
  513. 513 In its reply the Government states that with a view to assisting the trade unions to bring their structure into compliance with the new legislation and to helping them to establish reasonable control over finance, the Department of Labour prepared and made available, free of charge, to the unions various types of specimen Constitutions, membership rolls and simple accounting systems. The Government states that these aids were readily taken up by the unions, and particularly by Africans interested in the formation and registration of new trade unions. Further, many of the registered and newly registered unions have adopted the specimen Constitutions with only minor modifications, while others, with assistance from a senior official of the Department of Labour (who was made available full time to assist the unions in their formative stages), have included whatever additional provisions they require or felt desirable to meet their particular needs. Other unions, moreover, have drawn up original Constitutions, again with the ready assistance of the Department of Labour. The Government emphasises, finally, that there is no obligation on trade unions to accept these specimen Constitutions or to consult officials of the Department of Labour in connection with the drawing up 0 f Constitutions.
  514. 514 The Government goes on to state that under the Act the approval of Constitutions and applications for registration are the responsibility of the Industrial Registrar and not the Minister of Labour. Any trade union, aggrieved by any decision of the Industrial Registrar on either of these matters, has the right to appeal to the Industrial Court. According to the present law, however, when a decision on the Constitution is based on grounds of public interest or reasonableness in relation to members of the public, appeal is to the Minister of Labour. The Government concludes, however, by stating that arising from a request from the International Labour Organisation Committee of Experts in March 1962, it has agreed that sections 37 and 48 of the Industrial Conciliation Act, 1959, be amended to make all appeals, without exception, lie to the Industrial Court.
  515. 515 In several previous cases the Committee has insisted on the importance which it attaches to the principle contained in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), according to which workers' organisations should have the right to draw up their Constitutions and rules in full freedom.
  516. 516 By virtue of this principle, to impose any obligation on a trade union to base its Constitution on a compulsory model (apart from certain purely formal clauses) would be to disregard the rules which ensure freedom of association. The case is quite different, however, as it would appear to be in the present instance, when the Government merely makes specimen Constitutions available to organisations in process of creation without requiring them to accept an obligatory model.
  517. 517 Further, the Government's reply indicates that if for any reason the Constitution of a trade union is not accepted by the Industrial Registrar, it is open to the union in most cases-and indeed according to the Government in nearly all cases without exception-to have recourse to the Industrial Court. The only present exception to this rule has been considered by the Committee in the broader context of trade union registration in Case No. 251 relating to Southern Rhodesia, which was before it at its present session, and need not therefore be examined in substance here.
  518. 518 In these circumstances the Committee recommends the Governing Body:
       • (a) to decide that the preparation of specimen Constitutions and rules for the guidance of trade unions which there is no obligation to accept, does not, provided that the circumstances are such that there is no compulsion or pressure in fact to accept them in practice, necessarily involve any interference with the right of organisations to draw up their Constitutions and rules in full freedom, and that such part of these allegations as relate to the imposition of model rules to be followed by trade unions accordingly does not call for further examination;
       • (b) to note the undertaking given by the Government that the Industrial Conciliation Act, 1959, will be amended to make all appeals, without exception, against decisions of the Industrial Registrar lie to the Industrial Court.
  519. Allegations relating to the Denial of the Right of Association to Certain Classes of Workers
  519. 519 The complainants allege that under the industrial Conciliation Act of 1959 agricultural workers, civil servants and domestic workers are not allowed to form their own trade unions and that since the provisions of the Act do not apply to them these classes of workers are denied the right to organise.
  520. 520 In its reply the Government admits that these classes of workers are excluded from the application of the Industrial Conciliation Act of 1959, but maintains that this does not mean that these workers are prevented from establishing trade unions which are not based on this legislation. Such unions, in fact, exist.
  521. 521 As allegations relating to this same matter have already been examined by the Committee in Case No. 251 relating to Southern Rhodesia, at this present session, the Committee considers it unnecessary to examine the present allegations made in this case.
• Allegations relating to the Utilisation of the Law and Order (Maintenance) Act to Restrict Trade Union Activities
  522. 522 According to the complainants the Government is using political legislation to restrict the activities of trade unions and to frustrate the whole trade union movement. The authorities are making use of the Law and Order (Maintenance) Act as a means of suppressing trade union activities. With a view to intimidating the workers, organising secretaries have been maltreated in the pursuance of their duties within their organisations. Moreover, on 7 May 1962, the general secretary of the complainant organisation was arrested while he was addressing workers who had gone on strike.
  523. 523 The Government in its reply states that the purpose of the Law and Order (Maintenance) Act, as the name clearly implies, is to ensure protection of the community as a whole against unlawful actions designed to subvert law and order. As an integral part of the community, trade unions are subject to any restrictions applying to the public. At no time has the Law and Order (Maintenance) Act or any other legislation of like character been applied to restrict genuine trade union activities or to intimidate the workers.
  524. 524 The general secretary of the Southern Rhodesia African Trades Union Congress is stated by the Government to have been arrested while addressing a group of strikers, not because he was addressing strikers, but because in his address he made a statement which was alleged to be subversive or likely to cause a breach of the peace. The Government adds that this case is sub judice and he has been released on bail pending proceedings in the High Court.
  525. 525 The allegation of the complainants that the Law and Order (Maintenance) Act is being used to restrict trade union activities is expressed in vague terms. No precise fact is cited in support of the allegation, such as the date or place of incidents or the names of persons involved in these incidents. The Government makes a formal denial of the allegation and claims that while this law imposes on trade unions certain restrictions just as it imposes them on all members of the community, it has never been used to restrict trade union activities.
  526. 526 The complainants do, however, make a precise charge in stating that the general secretary of the Southern Rhodesia African Trades Union Congress was arrested under this Act, while he was addressing strikers. The Government admits that the arrest was made, but states that the reason for it concerned public order and not trade unions. Moreover, the person concerned has been released on bail pending proceedings in the High Court.
  527. 527 In past cases, the Committee has followed the practice of not proceeding to examine matters which were the subject of pending judicial proceedings, provided that these proceedings were attended by proper guarantees of due process of law, where such proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded.
  528. 528 In these circumstances, the Committee requests the Government to be good enough to furnish information in due course as to the outcome of the pending proceedings, accompanied by a copy of the judgment handed down.
• Allegations relating to Restrictions Imposed on the Right to Hold Trade Union Meetings
  529. 529 The complainants allege that under the Law and Order (Maintenance) Act prior permission is necessary to hold a meeting, and it is given or refused in an arbitrary manner. When permission has been given, police officers attend the meeting and make notes of the discussions. These police officers have the right to stop speakers from saying certain things. On occasion the police have prevented workers from attending meetings and sometimes have made arrests. Local authorities demand large deposits as security before any meeting can be held.
  530. 530 In its reply the Government admits that one of the restrictions imposed by the Law and Order (Maintenance) Act " relates to the calling of public meetings ". The Government maintains that attendance at trade union meetings is not limited to trade union members and experience has shown that the subjects discussed are not restricted to trade union matters, but frequently include topics of a political nature. In these circumstances it is normal for members of the police force to be present at meetings organised by trade unions to which the public have access. Police attending trade union meetings do not normally interfere in the proceedings, but, should a speaker make a statement which constitutes a criminal offence or which is likely seriously to endanger public safety and security, they must take the necessary action to uphold the laws of the country and maintain public order.
  531. 531 The Government goes on to state that the authorities which enforce the law have never attempted to use the powers conferred on them at genuine trade union meetings. The police have never prevented workers from attending meetings, far less made any arrests.
  532. 532 Concerning deposits exacted by local authorities as security for the holding of meetings, the Government maintains that such authorities in Rhodesia are independent of the Government except where certain financial and other minor matters are involved. These local authorities regulate meetings by requiring notice to be given and indicate suitable places if such meetings are to be in the open air. In recent years damage amounting to many thousands of pounds has resulted from riots following political meetings. Not infrequently, property which has become the target of attack during the riots has been property owned by the local authority for the benefit of the inhabitants or owned by a fund of which the local authority is a trustee. Despite this fact the local authorities have required the payment of no form of indemnity as a condition for the holding of trade union meetings. There is only one exception in the case of one large authority which requires the payment of a maximum deposit of £10 if a meeting is to be held in a hall. The deposit is refunded at the end of the meeting if no damage or, as a general rule, if only minor damage has resulted.
  533. 533 The allegations of the complainants that workers have been prevented from attending meetings and have even been arrested while going to attend meetings and that large sums are demanded by local authorities as security for holding meetings are expressed in general terms and are not supported by any precise facts. The Government categorically denies the truth of the former allegations; and with regard to the last, it appears from the explanation supplied by the Government that a deposit has been demanded only on one occasion and that the sum demanded (£10) bears no resemblance to the " colossal sums " referred to by the complainants.
  534. 534 The Committee considers that the complainants have not adduced sufficient evidence to support their allegations referred to in the preceding paragraph and, therefore, recommends the Governing Body to decide that they do not call for further examination.
  535. 535 There remains the allegation that members of the police force attend trade union meetings. The Government admits that police officers do attend such meetings and even in certain circumstances intervene to dissolve them.
  536. 536 In a considerable number of cases the Committee has declared that the right of trade unions to hold meetings freely in their own premises without the need for previous authorisation and without control by the public authorities, constitutes a fundamental element in freedom of association. In the present case, in which the Government admits that members of the police attend trade union meetings, the Committee, as it has done in analogous cases, and as did the Committee of Experts on the Application of Conventions and Recommendations when examining the application in Cuba of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), expresses the view that the presence of police officers at trade union meetings might constitute an " interference " from which by virtue of Article 3, paragraph 2, of Convention No. 87 " the public authorities should refrain ".
  537. 537 The Committee, therefore, recommends the Governing Body to draw the attention of the Government to the fact that the presence of police officers at trade union meetings may be considered as an interference, from which the public authorities should refrain, with the right of trade unions to hold meetings in freedom.
• Allegations relating to the Suppression of the Strike Called on 14 May 1962
  538. 538 The complainants allege that following a strike on 14 May 1962 to protest against police interference in trade union activities and generally against the Government's attitude against the trade union movement, the army and the police maltreated the strikers, shooting occurred which caused four deaths and many casualties, and more than 3,000 strikers were dismissed from their employment.
  539. 539 In its reply the Government gives the following version of these incidents. On 13 May 1962 a 24-hour general stoppage of work on the following day was called for as a " warning shot to the Government for better wages for African workers ". On Monday 14 May 1962, the Government states, it became obvious in the early hours of the morning that a definite prearranged pattern of intimidation and assault was being followed to prevent workers going to work. The police were ordered to protect workers going to their work, and this was done. Despite the intimidation and the threats of violence against their families, approximately 80 per cent of the workers proceeded to their work. No worker was compelled either to vacate his home or to go to work.
  540. 540 The Government goes on to state that the failure of this strike influenced intimidators to increase their activities, and it became necessary in the afternoon to use force against those who were molesting returning workers and threatening life and property. " The police had to resort to the use of firearms on six occasions, resulting in the death of two and wounding of ten others, members of roving gangs threatening law-abiding workers returning from work." A limited number of troops was called out in the late afternoon of the 14th to give protection to the workers returning home.
  541. 541 With regard to the dismissals referred to by the complainants, the Government states that many employers, " exasperated by the actions " of the strikers, instantly dismissed all workers who had failed to attend their employment on Monday 14 May 1962. The Government indicates that employers' organisations supported employers in their action, but counselled review of each case and reinstatement if the employer was satisfied that the individual worker had been intimidated or had been too fearful of reprisals if he attended work. The Government does not have exact figures available, but the employers estimate that not more than 150 strikers actually lost their employment. Several workers have already been reinstated.
  542. 542 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, but only 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 a 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 ".
  543. 543 In the present case, while the complainants allege, among the motives for the strike, police interference in trade union activity and poor wages and bad conditions, the Government itself states that the proclaimed reason for the strike was to give a warning to the Government for better wages for African workers. The strike appears to have been a general strike called by the central African workers' organisation and, therefore, the Government may have been partially involved, in its role as an employer, in the claims made for better wages. This would seem, in accordance with the view expressed by the Committee in Case No. 221 relating to Aden in circumstances having certain points of analogy with the present case, to make it seem doubtful whether the allegations could be dismissed at the outset on the ground that the strike was not in furtherance of a trade dispute.
  544. 544 Before proceeding further with this aspect of the matter, or with respect to the Government's contention that the incidents of violence which took place were occasioned by the fact that the police were obliged to protect non-strikers against unlawful intimidation, the Committee observes that certain persons-four according to the complainants, two according to the Government-were killed when the police fired on strikers, and recalls that, in cases in which the dispersal of public assemblies, etc., by the police, on grounds of public order or similar grounds, has involved loss of life, it has attached special importance to the circumstances being fully investigated by an immediate and independent special inquiry and to the regular legal procedure being followed to determine the justification and responsibility for the action taken by the police.
  545. 545 In these circumstances the Committee requests the Government to indicate whether any independent special inquiry has been instituted to investigate the circumstances in which certain persons involved in the strike in May 1962 lost their lives as a result of measures taken by the police and, if so, to inform the Committee as to the results of such inquiry.
• Allegations relating to Industrial Inspectors
  546. 546 It is alleged that the Government is replacing trade unions by its industrial inspectors, so that several employers-the names of four companies are given as examples-refuse to negotiate with the trade unions; that the inspectors ask the employers to deal with them instead of with the trade unions; that when workers have gone on strike the Government has urged the employers to sack them; and that the Government refuses to take action in cases of victimisation for trade union activities.
  547. 547 The Government explains that industrial officers have the duty of enforcing the employment regulations and that employees who approach the Southern Rhodesia African T.U.C with complaints are often told by the T.U.C to go to the industrial officer. In fact, declares the Government, officials of the S.R.A.T.U.C are sometimes very irresponsible and industrial officers spend much time advising them how to approach employers and deal with legitimate trade union business. The Government denies that industrial officers have ever tried to persuade employers to ignore union officials; where the employer has been agreeable, union officials have been present when employers and industrial officers have discussed complaints and grievances. The S.R.A.T.U.C has made complaints to the Department of Labour concerning victimisation of workers for trade union membership and activities, but, although asked each time to supply factual information, the T.U.C has done so, according to the Government, only in one case, and this case was handed to the police for full investigation and, if warranted, prosecution.
  548. 548 These allegations are presented in very general terms, with no real evidence to support them, and each point has been answered by the Government with sufficiently detailed information.
  549. 549 The Committee considers that the complainants have not offered sufficient proof in support of their allegations to show that in the instances mentioned infringement of trade union rights have occurred and, therefore, recommends the Governing Body to decide that these allegations do not call for further examination.

The Committee's recommendations

1. 550. In all the circumstances the Committee recommends the Governing Body:
   • (a) to decide that the allegations relating to industrial inspectors do not call for further examination;
   • (b) with regard to the allegations relating to restrictions imposed by the Industrial Conciliation Act, 1959, on the right of trade unions freely to draw up their own Constitutions and rules:
   • (i) to decide that the preparation of specimen Constitutions and rules for the guidance of trade unions which there is no obligation to accept, provided that the circumstances are such that there is no compulsion or pressure in fact to accept them in practice, does not necessarily involve any interference with the right of organisations to draw up their Constitutions and rules in full freedom, and that such part of these allegations as relates to the imposition of model rules to be followed by trade unions accordingly does not call for further examination;
   • (ii) to note the undertaking given by the Government that the Industrial Conciliation Act, 1959, will be amended to make all appeals, without exception, against decisions of the Industrial Registrar lie to the Industrial Court;
   • (c) with regard to the allegations relating to restrictions imposed on the right to hold trade union meetings:
   • (i) to decide that such part of the allegations as relates to renting conditions imposed by local authorities does not call for further examination;
   • (ii) to draw the attention of the Government to the fact that the presence of police officers at trade union meetings may be considered as an interference, from which the public authorities should refrain, with the right of trade unions to hold meetings in freedom;
   • (d) to take note of the present interim report of the Committee with regard to the allegations relating to the utilisation of the Law and Order (Maintenance) Act to restrict trade union activities and to the suppression of the strike called on 14 May 1962, it being understood that the Committee will report further thereon to the Governing Body when it has received further information which it has decided to request from the Government.
     • Geneva, 1 November 1962. (Signed) Roberto AGO, Chairman.