Report in which the committee requests to be kept informed of development - REPORT_NO287, June 1993

1. 200. The Committee examined this case lodged by the International Federation of Building and Woodworkers (IFBWW) at its May 1992 Session and presented an interim report to the Governing Body. Subsequently, the Committee received a communication from the IFBWW dated 7 September 1992 and a communication from the Government dated 12 February 1993.
2. 201. Lesotho has ratified both the Freedom of Association and Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 202. This case involves allegations of anti-union actions in violation of Conventions Nos. 87 and 98 on the part of the Government and a French construction company, SPIE-BATIGNOLLES, following a strike by the Construction and Allied Workers' Union of Lesotho (CAWULE) in June 1990. The complainants originally raised the following issues: (1) detention of three 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 Belebisi and Tsehla Motsamai on 30 August 1990; (2) a police attack on and shooting of seven union leaders at the Bokon Ha Katse Hydroelectric Dam construction site on 20 July 1990; (3) withdrawal of Mr. Ts'Ukulu's passport to prevent him from attending an international trade union meeting; (4) frequent court actions against union officials as a form of harassment following strike action; (5) dismissal 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 and night-watchman, Mr. Ngaka Sula, and the brutal interrogation of a CAWULE regional organizer in connection with this shooting; and (8) lastly at the legislative level, the lack of provisions in Lesotho statutes protecting workers who participate in legitimate strikes, as noted in a Court of Appeal judgement dismissing CAWULE'S action against the company for unfair dismissal.
2. 203. At its May 1992 Session, the Committee made the following recommendations (see 283rd Report of the Committee, para. 355):
   • (a) The Committee regrets that the Government is silent about the alleged detention on 20 July 1990 of CAWULE's General Secretary and the withdrawal of his passport. Recalling 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 and that governments should abstain from any measure, such as withholding travel documents, that would prevent representatives of workers' organizations from exercising their mandate in full freedom and independence, it asks the Government to indicate whether 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.
   • (b) Regarding the arrest on 30 August 1990 of two leaders of the Lesotho Brick-making, Construction and Woodworkers' Union (LBCWWU), as the complainant did not specify whether this Union was also affiliated to it, the Committee requests the complainant to clarify this point.
   • (c) Regarding the alleged police attack on and shooting of seven union leaders at a dam construction site on 20 July 1990, the Committee again regrets that it has no specific information from the Government and asks the Government to indicate whether it has set up a judicial inquiry to ascertain the facts in full, determine responsibilities, punish those responsible and prevent the repetition of such actions and, if so, to communicate its findings.
   • (d) The Committee, noting that criminal proceedings are under way and sub judice into the murder by a policeman of CAWULE shop steward, Mr. Ngaka Sula, on 30 August 1991, asks the Government to supply a copy of the judgement concerning this murder as soon as it is handed down and, in the meantime, to supply updates on the progress of the proceedings.
   • (e) Regarding the dismissal of a total of 334 workers who took part in the strike called by CAWULE, the Committee recalls the importance of the right to strike and calls on the Government to approach the employer in the present case to give serious consideration to the possibility of reinstating the persons thus sanctioned, and to keep the Committee informed of developments.
   • (f) The Committee requests the Government to explain the scope of the provisions of the Trade Unions and Trade Disputes Law, 1964, to protect workers against dismissal for strike action and to indicate, in particular, if they apply protection against dismissals based on the common law.
   • (g) 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.
   • (h) Regarding the alleged police interference in union celebrations on 1 May 1991 which had been authorized by the authorities, the Committee regrets that the Government has not replied to this allegation. It trusts that all union property confiscated on May Day has been returned to CAWULE and that, in the future, such interference will be avoided.

B. The complainant's reply

1. 204. In a communication of 7 September 1992, IFBWW states that the Lesotho Brick-making, Construction and Woodworkers' Union (LBCWWU) is not an affiliated union, but that references to this organization were made to illustrate the widespread intimidation of trade unionists at the time of the other incidents.

C. The Government's reply

1. 205. In a communication of 12 February 1993, the Government replied in detail to the Committee's recommendations. Regarding the murder of CAWULE shop steward and night-watchman Mr. Ngaka Sula, the Government states that a public prosecutor is conducting a preparatory examination to determine the charges to be levelled against the policeman concerned. The case is before the magistrate for the District of Thaba-Tseka, which is where the shooting took place. After a postponement for unspecified reasons, proceedings were due to recommence on 17 February 1993.
2. 206. Regarding the arrest and detention of trade union leaders, including Mr. Sello Ts'Ukulu, the Government states that they were arrested on 20 July 1990 under the Internal Security Act, 1984. They were charged with intimidation and incitement of workers to public violence, stemming from speeches that they gave at the Katse construction site. The Government explains that Mr. Ts'Ukulu was heard inciting workers to use violence against police, including the statement that the striking workers should "fight to the last man" in pursuit of the strike and other statements suggesting that the police would be held responsible for any bloodshed. The Government notes that these events occurred against the backdrop of a High Court Order of 5 July 1990 which restrained the striking workers from entering the Katse Camp, from interfering with the resumption of construction work, and from threatening to assault the non-striking employees who wanted to continue with their work. The Government states that the police were authorized to take measures to ensure compliance with the Court Order, and that Mr. Ts'Ukulu intentionally incited the workers to use violence against the police.
3. 207. The Government further states that the charges against all the union leaders were dismissed in court, constituting an acquittal. No copy of the decision is available because the court does not have the resources to transcribe judgements that have not been appealed.
4. 208. Regarding the allegation that Mr. Ts'Ukulu's passport was confiscated, the Government replies that its investigation has found no confirmation of this claim and that Mr. Ts'Ukulu never made any report or complaint (other than to the ILO) regarding the passport. The Government states that had Mr. Ts'Ukulu made such a complaint, it would have taken immediate steps to ensure his right to travel. It also states that Mr. Ts'Ukulu has lately been travelling out of the country on trade union business and that there is no way in which he could be travelling abroad unless he has been issued a passport. The Government adds that Mr. Ts'Ukulu is free to attend to trade union functions anywhere, whether in or outside Lesotho, including overseas.
5. 209. Regarding the alleged shooting of seven union officials on 20 July 1990, the Government states that there was an incident at the Katse Camp Site on the date in question but that it involved the shooting in the thigh of one person who was resisting arrest, not seven persons. The Government names that person as Mr. Thaban Mosae and states that the police had come with arrest warrants for several individuals who may or may not have been union officials. The Government states that the police fired their weapons in order to ward off individuals armed with sticks who approached with the apparent intention to attack the police. No inquiry was held into the shooting, the Government states, because "the circumstances under which this person was shot seem clear enough."
6. 210. Regarding the allegation of police interference with 1991 May Day celebrations, the Government states that it is true that a number of CAWULE members were arrested on the morning of 1 May 1991 for staging an unlawful demonstration en route to the Pisto Ground. The individuals were arrested and released after about an hour and allowed to proceed to the rally. The Government points out that property confiscated from the union members is being used in the case, which has been opened as Doct No. RCI/5/9/91, and cannot be released until the trial has ended. The Government adds that "as to whether public order was threatened by this demonstration and to what degree if ever it was, we are not able to say". The Government points out that the Internal Security Act 1984 on Meetings and Processions states that the staging of any procession or demonstration without prior authorization is prohibited.
7. 211. Regarding the dismissals of 334 strikers, the Government states that the matter is res judicata and that "it is vexatious and an abuse of the ILO machinery to seek to obtain a retrial of an issue which has been determined by the court of a sovereign state". The Government adds that it is committed to observing workers' fundamental right to strike but that those who exercise it must take note of the employer's right to replace strikers. The Government cites three reasons for which the workers cannot be reinstated: (1) their dismissal was confirmed by the Court of Appeals; (2) the workers are free to negotiate for themselves their reinstatement; (3) the company that employed the dismissed workers has completed its contract and has left Lesotho.
8. 212. Regarding the Committee's request for an explanation of the scope of the Trade Unions and Trade Disputes Law, 1964 ("the Law"), the Government states that interpretation of the Law is the exclusive domain of the courts. The Government adds, however, that there has never been a single strike called by workers in accordance with the Law's basic provisions. The CAWULE strike came the closest but the union and its members "lost patience" and went on strike one week before the expiration of the legally permitted notice period. The Government adds that Part XI of the Law relating to unfair labour practices has only been interpreted in limited instances of anti-union discrimination. It has never been tested as to whether the mass dismissal of employees who had heeded a strike call by their union would constitute discrimination. Nor has there been a court test of whether selective re-employment of dismissed workers constitutes discrimination.

C. The Committee's conclusions

1. 213. The Committee takes note of the Government's detailed response to its recommendations. The Committee must make one procedural observation before considering the substance of this case. The Government has described the Committee's examination of its court decisions regarding dismissals of strikers as "vexatious" and "an abuse of ILO machinery" and suggests that such examination is a violation of its sovereignty. The Committee would point out that the matters dealt with by the ILO in respect of conditions of labour and promotion of freedom of association cannot be considered to be undue interference in the internal affairs of a sovereign State since such issues fall within the terms of reference that the ILO has received from its Members, who have committed themselves to attaining the aims of the Organization. Where national laws, including those interpreted by the high courts, violate the principles of freedom of association, the Committee has always considered it within its mandate to criticize the laws, provide guidelines and offer the ILO's technical support to bring the laws into compliance with the principles of freedom of association, as affirmed by the ILO Constitution and the Conventions. Such decisions are not "retrials" as the Government suggests; the Committee does not consider here whether the Government has acted in a manner consistent with national law. Rather, it is considering only whether and how national law conforms to international standards, and in particular the ILO Conventions. This Committee's work should in no way be considered a violation of national sovereignty. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 53.)
2. 214. As regards the alleged murder by a policeman of CAWULE shop steward, Mr. Ngaka Sula, on 30 August 1991, the Committee notes from the Government's reply that the District of Thaba Tseka public prosecutor is conducting a preparatory examination to determine the charges to be levelled against the policeman concerned. The Committee notes that more than 19 months have now passed since this alleged murder, and expresses its hope that the Government will take the necessary measures so that the accused will be tried expeditiously and punished if found guilty. The Committee renews its request that the Government send a copy of the judgement concerning this murder as soon as it is handed down and continue to supply up-dates on the progress of the proceedings.
3. 215. The Committee notes the Government's communication to the effect that the arrest and detention of union members at a 20 July 1990 rally was not arbitrary but that they were charged and brought to trial for violating specific provisions of the Internal Security Act, 1984. The Committee notes from the Government's reply, however, that a court of law acquitted all the unionists. The Committee would therefore point out that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arrest or detention of trade unionists. (See Digest, para. 90.) Noting that these unionists were eventually acquitted of all charges, the Committee would request that the Government take steps in the future to ensure that the authorities concerned have appropriate instructions to eliminate the dangers to freedom of association which arrest for trade union activities implies.
4. 216. The Committee notes the Government's statement that it could find no indication that Mr. Ts'Ukulu's passport had been revoked and that, in any case, he is free to attend to his trade union functions, including overseas travel.
5. 217. Regarding the arrests of two leaders of the Lesotho Brick-making, Construction and Woodworkers' Union (LBCWWU), the Committee takes note of the complainant's response that this union is not an affiliate. According to ILO procedures, this aspect of the complaint is therefore deemed irreceivable. (Digest, para. 34.)
6. 218. Regarding the alleged police attack on and shooting of union leaders at the dam construction site on 20 July 1990, the Committee notes the Government's report that one rather than seven individuals were wounded and that the individual, Mr. Thaban Mosae, had been wounded in the thigh while he and several others were resisting arrest. While noting the contradictions between the complainant's and the Government's accounts, the Committee expresses its concern at the gravity of allegations according to which the police forces opened fire. It again insists on the need for a formal inquiry and asks the Government to keep it informed of the results thereof.
7. 219. Regarding the dismissal of 334 strikers by the SPIE-BATIGNOLLES construction company, the Committee notes that, according to the Government, the question of whether mass dismissals of striking workers might constitute anti-union discrimination has not been tested before the courts. Rather, the Government points out that the Court of Appeals made its ruling against reinstatement of the strikers without reference to the Trade Unions and Trade Disputes Law, 1964, section XI of which holds that anti-union discrimination constitutes an unfair labour practice.
8. 220. Noting that, according to the Government, no strike has been called in accordance with the requirements of the Trade Union and Disputes Law, 1964, the Committee notes with interest that future cases regarding dismissals of striking workers would arise under the recently passed Labour Code Order, 1992 ("the Code"), which replaces and repeals the Trade Unions and Trade Disputes Law, 1964, as well as the Employment Act 1967. The Committee notes especially the following provisions of the new Code:
9. - Part V - section 66: Dismissal
10. ...
11. (3) The following shall not constitute valid reasons for termination of employment -
12. (a) trade union membership or participation in trade union activities outside working hours or, with the consent of the employer, within working hours;
13. ...
14. (e) absence from work in accordance with the provisions of the Code or as authorized by the employer.
15. - Part XV - section 196: Discrimination against union members and officials...
16. (2) Any person who seeks, by intimidation, threats, dismissal, imposition of a penalty, giving or offering to give a wage increase, or any other means, to induce an employee to refrain from becoming or to refrain from continuing to be a member, officer or trustee or a trade union shall commit an unfair labour practice.
17. The Committee emphasizes its view 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. (See Digest, para. 444.) The Committee trusts that the new Code will prohibit the dismissal of union members for exercising their legal right to strike. The Committee refers this aspect of the case to the Committee of Experts for consideration under Conventions Nos. 87 and 98.
18. 221. Regarding the Government's statement that it would be impossible to reinstate any of the workers, the Committee notes that the construction enterprise has left Lesotho. The Committee nevertheless draws the Government's attention to the importance of financial compensation for the workers who were dismissed for their participation in this strike.
19. 222. Regarding the allegation of police interference with the 1991 May Day celebrations, the Committee notes the Government's explanation that the staging of a procession or demonstration without prior authorization is prohibited and that a case, Doct. No. RCI/5/91, has been opened against the marchers. The Committee would note that nearly two years have passed since this incident and it trusts that the CAWULE flags and any other union property confiscated for the purposes of the court case will be returned to the union at the earliest possible time. The Committee requests the Government to keep it informed of any action taken in this respect and of any decision in the case.