Interim Report - REPORT_NO283, June 1992

1. 320. The International Federation of Building and Woodworkers (IFBWW) presented a complaint against the Government of Lesotho alleging violations of freedom of association in communications dated 5 September 1990 and 24 June 1991. It presented additional information in letters of 19 July, 25 September and 5 November 1991.
2. 321. The Government sent certain observations on the allegations in communications dated 13 December 1991 and 29 January 1992.
3. 322. Lesotho has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 323. In its letters of 5 September 1990 and 24 June 1991, the IFBWW alleges that its affiliate, the Construction and Allied Workers' Union of Lesotho (CAWULE), suffered from action taken by the military authorities during a dispute between the union and an international construction company SPIE-BATIGNOLLES. The company had been contracted to build the Highlands Water Project. During the course of work, negotiations broke down between the union and the company resulting in a strike. During the strike many union members were laid off and casual labour used to replace them. The union is currently taking this matter to court in Lesotho seeking the reinstatement of the unionists.
2. 324. The complainant alleges that the Government has violated Convention No. 87 on the following grounds:
   • - the arbitrary detention of trade union leaders, including the General Secretary of CAWULE, Mr. Sello Ts'Ukulu, arrested on the night of 20 July 1990;
   • - the physical attack by heavily armed police, also on 20 July, on trade union committee members at the Bokong Ha Katse Hydroelectric Dam construction site, resulting in the shooting of seven trade union officials;
   • - the withdrawal of the passport of Mr. Ts'Ukulu, preventing him from attending an IFBWW meeting during the first week of August 1990;
   • - further arbitrary arrests on 30 August 1990 on unknown charges of leaders of the Lesotho Brick-making, Construction and Woodworkers' Union (LBCWWU), Messrs. Lebohang Belebesi and Tsehla Motsamai;
   • - union officials are frequently charged with inciting strike action and internal security charges which have been overturned by the High Court;
   • - the company continues to refuse to reinstate 200 workers involved in the last strike, a matter which the CAWULE is pursuing before the High Court.
3. 325. The complainant encloses a press statement from CAWULE explaining the dispute and strike. It appears that a dispute concerning employment conditions (transport to and from Maseru, accommodation allowance for employees and wages and wage increments) was declared against the company on 15 May 1990 following a deadlock in conciliation proceedings which had lasted three days between 7 and 9 May. The workers unanimously decided to call a strike on 15 June 1990. On 4 June the union was advised by the Department of Labour that the strike notice to the Minister appeared to be contrary to the provisions of the relevant Act because the Minister had not yet asked the union whether arbitration would be required; the labour commissioner contended that the strike would prejudice the other parties concerned in the dispute. On 13 June the union met with company management to discuss recognition agreements and the question of the proposed strike was brought up; the union canvassed the workers again to ascertain if they wished to continue with the strike and received overwhelming support as the employees had reached their level of tolerance with the company's arrogance. When the strike started, 30 workers were dismissed without consultations with the union.
4. 326. With its letter of 19 July 1991, the complainant encloses copies of the following documents: CAWULE's submission before the Lesotho Court of Appeal heard on 19 July 1991; letter dated 1 June 1990 from the company accepting responsibility for treatment of CAWULE member Peter Moshoeshoe after an assault, together with the relevant doctor's report; letter dated 22 March 1990 from the company arranging accommodation for the police at the dam site; letter dated 18 May 1991 from the company refusing a trade union representative access to meet workers; defamation claim by CAWULE against members of the military council; minutes of the conciliation proceedings of 7, 8 and 9 May 1990; CAWULE's notice of a legal strike dated 15 May 1990; Notice of Motion and consequent Order of Court of 5 July 1990 authorising police action to ensure compliance with its decision to restrain CAWULE and its members from entering the company's Katse Camp site; High Court judgement of 3 July 1990 declaring the strike illegal; list of 334 dismissed workers requesting reinstatement.
5. 327. The complainant repeats that the collusion between the Government and the company in suppressing CAWULE's right to organise and in discriminating against those unionists who participated in the June 1990 strike amounts to violations of Conventions Nos. 87 and 98. It points to the document where the company admits responsibility for treatment and travel of a worker, referred to above, as illustrating the level of company intimidation. It also emphasises the company's heavy reliance on and use of police in suppressing trade union action during the strike.
6. 328. The strike is now over and a new agreement has been concluded and yet the company, supported by the Lesotho courts, continues to discriminate against the workers who had taken part in the strike. The complainant lists examples of recent trade union intimidation:
   • - CAWULE was granted permission by the military authorities to organise the first May Day festival in Lesotho's history on 1 May 1991, but 212 persons were detained at 7 a.m. and released at 11 a.m. without charges and all CAWULE's flags were confiscated and still have not been returned;
   • - about 15 heavily armed military police were present filming the festivities, and trade union leaders speaking at the event were intimidated by the police and told not to criticise the Government or no permission would be granted for further public meetings of the union;
   • - on 2 May 1991 heavily armed police entered CAWULE headquarters searching for workers who were meant to report to the police station.
7. 329. In its letter of 25 September 1991 the complainant describes the Court of Appeal judgement of 26 July 1991 which dismisses CAWULE's appeal against the company for unfair dismissal of union members. It cites the judge:
   • It seems that there is no statute in Lesotho which protects workers who go on strike in consequence of a wage dispute for example. The concept of "unfair practices", which exists in South Africa and certain Western countries has, as yet, not reached Lesotho. This concept enables a trade union, for example, to call its members out on strike when they have been unfairly treated without fear that their absence from work will be regarded as a repudiation of the workers' contracts of service. This bargaining weapon is regarded as essential, in this day and age, in order to maintain a fair balance of power between employer and employee, and there seems to be no good reason why Lesotho should not join the other countries I have mentioned in this regard.
   • The IFBWW sees this admission as direct proof of the Government's disregard for international labour standards, particularly as the laws contradict Convention No. 87 where the right to strike is protected.
8. 330. It adds that CAWULE members continue to be harassed at the Highlands Water Venture for the construction of the Katse Dam. On 30 August 1991 at 4 a.m., a shop steward, Mr. Ngaka Sula, working as a night-watchman was shot dead; he was cooperating with the CAWULE regional organiser by allowing him to enter workers' hostels in the evenings. The company apparently did not allow union organisers to talk to workers during the day. The organiser was subsequently arrested for four days and, according to the complainant, circumstances suggest that the shooting was a result of legitimate union activities. The organiser managed to escape and inform CAWULE officials of this incident.
9. 331. In its letter of 5 November 1991 the complainant adds that the CAWULE regional organiser was taken by three members of the police to the spot of Mr. Sula's murder and brutally interrogated. He was told that it was because of Mr. Sula's attitude towards the police that the police finally decided to kill him. The complainant includes a copy of a letter dated 19 August 1991 in which CAWULE requested the labour commissioner to call on the company to meet with it to discuss labour matters at the negotiating table, but the commissioner apparently ignored this request.

B. The Government's reply

1. 332. In a letter of 13 December 1991, the Government first challenges the identity of the complainant, referring to earlier correspondence sent by CAWULE as the basis for the complaint rather than the IFBWW's letters of 5 September 1990 and 24 June 1991. The Government then argues that if the IFBWW letters are decided to be the commencement of the formal proceedings before the Committee on Freedom of Association, there is a flaw in the proceedings because the IFBWW has not availed the Government, through the Office, of all the information and documents in its possession to enable the Government to respond meaningfully and fully. The Government believes that the complainant is duty bound to supply all information to enable those against whom a complaint is being made to know the full nature of the case against them. In addition, the Government states that the IFBWW's two initial letters are couched in broad and vague terms and do not point to any specific infringement of trade union rights.
2. 333. Referring to the IFBWW letter of 19 July 1991, the Government is of the view that the annexures thereto do not clarify the case any further. It describes them as an amalgam of various documents which do not disclose any common purpose and as such are irrelevant. In particular it challenges the relevance of the documents concerning CAWULE's defamation claim, the minutes of the conciliation proceedings and the strike notice dated 15 May 1990. As for the company letter relied on by the complainant as proof of company intimidation, the Government states that the fact that the company at one time accepted responsibility for the treatment of Mr. Moshoeshoe does not establish who the assailant was, nor the motive of the assault. Likewise, the accommodation of police at the company's Katse site is a matter occurring in March 1990 and thus had nothing to do with the period covered by the case, namely the period of the strike commencing 15 June 1990. The copy of CAWULE's arguments advanced before the competent court is also, in the Government's opinion, totally irrelevant and cannot, by simply being annexed to letters in this case, purport to be evidence or arguments furthering the case. Finally, regarding the copies of two court decisions, the Government states that neither the ILO nor any of its various committees are competent appellate courts; it thus fails to see how they can serve any useful purpose in this case. In the same way, the Government believes that the attachment of the list of dismissed workers involved in the Appeal Court action does not disclose any infringement of trade union rights; it states that, after all, they were given a hearing.
3. 334. Regarding the IFBWW's allegation that there were further arbitrary arrests of officials of the LBCWWU, the Government points out that there is no proof that either this local union or the LBAWU are affiliated members of the complainant in this case, namely the IFBWW.
4. 335. The Government accordingly submits that the case be dismissed until such time as a better thought out case is submitted by the complainant. According to the Government, at present it would amount to an abuse of the well-intended ILO machinery for the resolution of conflicts to entertain such a generalised and vague complaint which points to no specific infringement of trade union rights.
5. 336. In its communication of 29 January 1992, the Government repeats that, since IFBWW refers to a CAWULE letter, it would appear that the party filing the complaint is CAWULE; it feels prejudiced in preparing its reply to this case because the CAWULE letter was not sent with IFBWW's complaint. As to the substance of the case, the Government states that it will not entertain the use of the Committee on Freedom of Association as a forum for the review of the judgements of the courts of Lesotho. It thus limits its comments on the judgement to the material aspects of the case before the Committee and to the object that the IFBWW sought to achieve by referring to it.
6. 337. According to the Government, the so-called admission which has been extracted from the judgement of the Court of Appeal represents no more than an opinion which was expressed by the learned judge in the course of his judgement, but which was not essential to the decision on a matter at issue. It is trite law that such incidental statement of opinion by a judge does not have the authority of a decision on a matter at issue and as such does not form a precedent. The Government claims that knowledge of the Lesotho labour legislation shows that the learned judge erred in stating as he did that, "the concept of 'unfair practices' which exists in South Africa and certain Western countries has, as yet, not reached Lesotho". On the contrary, the Government points out that the concept of "unfair labour practices" is covered by Part XI of the Trade Unions and Trade Disputes Law (No. 11 of 1964), and that it contains very elaborate provisions, which protect the right of workers to organise into trade unions without hindrance or undue influences. It prohibits any form of discrimination against workers or victimisation of workers as a result of their membership of trade unions or as a result of their having become officers of a trade union. It is incorrect to say, as is implied in the extract from the Court of Appeal judgement, that the workers of Lesotho may not withhold their labour if they have been unfairly treated by an employer. Section 15(4) of the Employment Act (No. 22 of 1967) provides that "an employee may refuse to continue to work for an employer if he has been ill-treated by that employer. The question whether such ill-treatment has taken place may be referred to a Labour Office under the provisions of section 81". The Government does not agree that contrary to the provisions of Convention No. 87, the law of Lesotho does not protect the right to strike. Law No. 11 of 1964, Part VIII to Part X, deals with the procedures for strike action. The provisions of these Parts of the Law make strike action legal provided that such action is embarked upon after the procedures therein have been exhausted. People participating in such a legal strike are, by virtue of the law, protected from criminal prosecution. The Government disagrees with the suggestion that there is an international standard in terms of which striking employees may not be dismissed. It also disagrees with the learned Judge of Appeal in this regard. It wonders which Western countries the learned Judge had in mind, where the law allows workers to stage a strike indefinitely without risking dismissal.
7. 338. The Government states that Act No. 11 of 1964 defines a strike as meaning, inter alia, an act of breaking the employees' contracts of service. One of the glaring cases in which a contract of employment can be terminated for a lawful cause is where one of the parties to that contract has breached it. The Government maintains that this is an internationally accepted practice. If a strike amounts to a breach of contract, it follows that the employer is free, either to condone that breach and carry on considering the strikers as his employees, or to accept the breach and terminate the services of the striking employees for that breach of contract. The Government is thus convinced that the Lesotho law is not in violation of any international labour standard relating to the protection of the right to strike.
8. 339. The Government states that it does not have much to say on the murder of Ngaka Sula, except to confirm that it has come to the notice of the Government that on or around 27 August 1991 a policeman by the name of Molebatsi shot and killed one Ngaka Sula, who was an employee of one of the consortiums contracted to the Highlands Water Project. As far as the Government is aware, the killing of Mr. Sula was not in any way related to his trade union activities. It is understood that the two persons had had a quarrel at a beer-hall and the shooting resulted from a misunderstanding. However, the policeman involved is being charged with murder in criminal case No. RCI/83/8/91. The Government believes that the trial will throw light on most of the facts surrounding this incident, which are not readily available at this stage since the matter is now sub judice.

C. The Committee's conclusions

1. 340. The Committee notes that this case involves allegations that anti-union actions on the part of an employer and the Government following a strike by the Construction and Allied Workers' Union of Lesotho in June 1990 violate Conventions Nos. 87 and 98. Although the strike is over, a new collective agreement signed, and the final judgement of the Court of Appeal dismissing the union's action for unfair dismissal delivered, the complainant alleges that its affiliate, the construction union in question, continues to suffer anti-union discrimination.
2. 341. The specific allegations can be summarised as follows: (1) detention of three named trade union leaders and members (the CAWULE General Secretary, Mr. Sello Ts'Ukulu on 20 July 1990 and the leaders of the Lesotho Brick-making, Construction and Woodworkers' Union, Messrs. Lebohang Belebesi and Tsehla Motsamai on 30 August 1990); (2) police attack on and shooting of seven union leaders at the Bokong Ha Katse Hydroelectric Dam construction site on 20 July 1990; (3) withdrawal of Mr. Ts'Ukulu's passport to prevent him attending an international trade union meeting; (4) frequent court actions against union officials as a form of harassment following strike action; (5) dismissal of initially 30 and then a total of 334 workers and refusal to reinstate them following the strike; (6) police interference in May Day celebrations on 1 May 1991; (7) the murder on 30 August 1991 of a CAWULE shop steward night-watchman, Mr. Ngaka Sula, and the brutal interrogation of a CAWULE regional organiser in connection with this shooting; and lastly (8) at the legislative level, the lack of provisions in Lesotho statutes protecting workers who participate in legitimate strikes, as noted in the Court of Appeal judgement dismissing CAWULE's action against the company for unfair dismissal.
3. 342. The Committee notes that the Government, in its first reply, questions the identity of the complainant claiming that it should be the national union, CAWULE, rather than the international workers' organisation to which it is affiliated, because the international organisation refers to a letter from CAWULE which pre-dates the initial IFBWW complaint.
4. 343. At the outset, with reference to the Government's arguments on the form of the complaint, the Committee would recall that, according to decisions respecting its procedure approved by the Governing Body, allegations are receivable if they are submitted by a national workers' or employers' organisation directly interested in the matter, by international workers' or employers' organisations having consultative status with the ILO, or other international organisations of workers or employers where the allegations relate to matters directly affecting their affiliated organisations (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 34). In the present case, IFBWW's letters of September 1990 and June 1991 contain allegations relating to matters directly affecting its Lesotho affiliate, CAWULE, to which it makes specific reference. The allegations are thus receivable according to the third criterion mentioned above. The fact that the IFBWW refers - without supplying copies - in its letters of complaint to other correspondence from its affiliate dated well before the presentation of the complaint may be a point for comment in the Government's reply, but does not affect the receivability of the complaint from IFBWW. In view of this finding on receivability, the Committee welcomes the fact that the Government proceeded to reply in detail to some of the allegations.
5. 344. Also on the form of the complaint, the Committee notes the Government's claim that IFBBW's letters do not point to any specific infringement of trade union rights. The Committee is of the view, however, that the complainant's description of the eight issues listed above gives it sufficient detail to permit an examination, and thus also permits the Government to have made some effort to formulate detailed replies on all of them. The Committee would recall in this connection that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, as the procedure protects governments against unreasonable accusations, governments on their side should recognise the importance of formulating, so as to allow an objective examination, full and detailed replies to such detailed factual charges as may be brought against them (First Report of the Committee, para. 31).
6. 345. The Committee notes that the Government criticises the lack of detail in, or relevancy of, IFBWW's supporting documents and its initial complaint; maintains that protection of strikers does exist in Lesotho labour law; and reports that the murderer of the CAWULE shop steward is going to be tried but that further details on this aspect of the case are not available at this stage since the matter is sub judice. In particular, the Committee has taken due note of the Government's responses to six of the points made by the complainant. The Committee would summarise them as follows. First, the Government claims that IFBWW's supporting documents such as that describing a defamation action are irrelevant to the case. Secondly, it denies that the company accepting financial responsibility for a workers' medical treatment (following an assault on 12 May 1990) proves any connection between the company and the assailant or throws light on the motive of the assault. Thirdly, it denies the relevance of the allegation concerning accommodation being supplied to the police on the construction site because the accommodation was arranged in March 1990, many months before the events surrounding the June 1990 strike. Fourthly, it denies that the copies of the various court judgements show a head of claim on the issue of strikes and states that the ILO machinery is not a competent appellate court. Fifthly, regarding the dismissals, it points out that all those dismissed were given a hearing. Finally, the Committee notes the procedural point made by the Government concerning the arrest on 30 August 1990 of two leaders of the Lesotho Brick-making, Construction and Woodworkers' Union (LBCWWU), in that the complainant did not specify whether this union was also affiliated to it. The Committee accordingly requests the complainant to clarify this point so that the Government will be in a position to provide its comments thereon.
7. 346. Taking the specific allegations in the order set out above, the Committee must first express its regret that the Government is silent about the alleged detention on 20 July 1990, namely one month after the strike by CAWULE, of its General Secretary, Mr. Sello Ts'Ukulu, and the withdrawal of his passport. It would recall that the detention of trade union leaders for activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association (Digest, para. 87) and that since participation by unionists in international union meetings is a fundamental trade union right, governments should abstain from any measure, such as withholding travel documents, that would prevent representatives of workers' organisations from exercising their mandate in full freedom and independence (254th Report, Case No. 1406 (Zambia), para. 470). The Committee accordingly asks the Government to confirm that CAWULE's General Secretary is at liberty to attend to his trade union functions, including overseas travel where necessary, and that his passport has been returned to him.
8. 347. Regarding the alleged police attack on and shooting of seven union leaders at a dam construction site on 20 July 1990, a month after the strike, the Committee again regrets that it has no specific information from the Government on this incident. Even if the Government denies the relevance of the allegation concerning the fact that police were provided accommodation on the dam site in March of that year, a denial based on the grounds that the events complained of took place well after the June 1990 strike, the Committee cannot but highlight the fact that such a police presence, even if only for a limited period of time, could easily give rise to a sense of insecurity among the workers and their union and threaten the free exercise of trade union rights. The Committee is thus of the opinion that such practices should be avoided. In addition, it draws the Government's attention to the principle that when disorders have occurred involving loss of human life and serious injuries, the setting up of a judicial inquiry by the government concerned is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions (Digest, para. 78). It asks the Government to indicate whether any such inquiry has been held and to communicate its findings.
9. 348. As the complainant provides no details on its allegation that frequent court actions are launched against trade union officials who participate in strike action and as the Government does not comment thereon, the Committee is not in a position to consider this aspect of the case.
10. 349. Regarding the alleged police interference in union celebrations on 1 May 1991, the Committee regrets that the Government has not answered this point and draws the Government's attention to the principle that the right to organise public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights and that police authorities should be given precise instructions, in cases where public order is not seriously threatened, so that people are not arrested for simply having organised or participated in such a demonstration (Digest, paras. 155 and 168). This is particularly important in the present case as it appears that the authorities had given permission for the union's activities. The Committee accordingly trusts that all union property confiscated on May Day has been returned to it and that, in the future, such interference will be avoided.
11. 350. Regarding the murder by a policeman of CAWULE shop steward, Mr. Ngaka Sula, on 30 August 1991, the Committee notes that the criminal trial is sub judice. It asks the Government to supply a copy of the judgement concerning this murder as soon as it is handed down by the competent court and, in the meantime, asks it to supply up-dates on the progress of the proceedings.
12. 351. Regarding the dismissal of a final total of 334 workers who took part in the strike called by CAWULE, the Committee considers the Government's first response - to the effect that all those dismissed were given a hearing - insufficient. It has, however, been able to benefit from the copies of the various court documents supplied by the complainant in its assessment of this part of the complaint. According to the High Court decision of 3 July 1990, the one-day strike was illegal due to a procedural flaw in the serving of the strike notice. It appears from the Appeal Court judgement of 26 July 1991 that the Lesotho courts rely on a common law approach to dismissals following strike action - whether legal or not - and consider a strike to be a breach of the contract of employment of so fundamental a character that the employer is entitled to accept the strike as a repudiation of the contract and to dismiss the strikers. The decision states that "unless there is a statutory enactment which prevents it from so doing (the employer) was entitled to dismiss the strikers for their breach of contract". The Committee has considered the Government's second response - arguing that Lesotho labour law permits dismissals for strikes even when legal because strikes are defined to include breach of contract - and notes that the Government dismisses the Appellate Court Judge's obiter dicta in the unfair dismissal case brought by CAWULE.
13. 352. On this specific point the Committee would recall the principle that the right to strike is a fundamental and legitimate right of workers and their organisations for the promotion and defence of their occupational interests (Digest, paras. 362-364). It follows that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association (Digest, para. 444). Noting that industrial relations troubled by collective dismissal for participation in strike action can be greatly improved if the employers concerned give serious consideration to the possibility of reinstating the persons thus sanctioned, the Committee calls on the Government to approach the employer in the present case to reinstate the workers in question, and to keep it informed of developments.
14. 353. At the legislative level, the Committee notes that the complainant cites the Appeal Court decision stating that there is no legislative protection against unfair dismissal for striking in Lesotho. The Committee notes, however, that provisions exist in the Trade Unions and Trade Disputes Law, 1964, by which unionists can challenge - through unfair labour practice tribunals and the courts - employer actions, such as dismissals after a strike, as being anti-union. However, given the contradictory opinions of the Court of Appeal and the Government, the Committee asks the Government to explain the scope of the provisions of the law to protect workers against dismissal for strike action and to indicate, in particular, if they apply protection against dismissals based on the common law.
15. 354. The Committee reminds the Government that the technical services of the ILO are at its disposal for any assistance that it might require in the field of labour law.