REPRESENTATION (article 24) - CZECHOSLOVAKIA - C111 - 1978

Report of the Committee set up to consider the representation presented by the International Confederation of Free Trade Unions under article 24 of the ILO Constitution alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) by Czechoslovakia (CGT)

Decision

1. The Governing Body considered, under article 25 of the Constitution, that the reply received from the Government of Czechoslovakia was not satisfactory and accordingly decided that the representation and the reply should be published, together with the report of the Committee set up to consider the representation.

Complaint Procedure

1. Introduction
2. 1. By letter of 28 January 1977, the International Confederation of Free Trade Unions (ICFTU) presented a representation under article 24 of the Constitution of the International Labour Organisation, alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), by the Government of Czechoslovakia.
3. 2. The Discrimination (Employment and Occupation) Convention, 1958 (No. 111), was ratified by Czechoslovakia on 21 January 1964. It came into force for Czechoslovakia one year later, on 21 January 1965, under the normal procedure.
4. 3. The relevant provisions of the Constitution of the International Labour Organisation concerning the presentation of representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure for the examination of representations is governed by Standing Orders adopted by the Governing Body on 8 April 1932 and amended on 5 February 1938 (Appendix I).
10. 5. In accordance with article 2, paragraph 1, of the Standing Orders, the Director-General communicated the representation (reproduced in Appendix II) to members of the Governing Body on 28 February 1977.
11. 6. The Committee provided for under article 2, paragraph 3, of the Standing Orders was appointed by the Governing Body at its 203rd Session (May-June 1977), in accordance with the recommendations contained in a report by its Officers which was submitted to it at its 202nd Session (March 1977) and whose consideration had been postponed to the following session. The Committee was composed of Mr. Hector Griffin (Government member), Chairman, Mr. G. Polites (Employer member, replacing Mr. Vitaic Jakasa) and Mr. H. Maier (Worker member).
12. 7. As in the case of previous representations examined in 1965, 1970 and 1975, the Governing Body decided to empower the Committee to perform all the functions entrusted by the 1932 Standing Orders to the Governing Body as a whole until it was in a position to submit to the Governing Body proposals as to the action, if any, to be taken on the representation.
13. 8. The Committee held its first meeting in Geneva on 23 June 1977. It considered first of all the matter of the receivability of the representation and decided that it fulfilled the conditions as regards form laid down in article 3 of the 1932 Standing Orders. It then decided, in accordance with article 4, subparagraphs (c) and (d), of the Standing Orders: (a) to invite the ICFTU to supply further information on the points raised in support of its representation before 15 August 1977, and (b) to invite the Government to submit its observations on the representation before 30 September 1977, it being understood that the additional information received from the ICFTU would also be communicated to the Government.
14. 9. Further information was received from the ICFTU by letter of 28 July 1977. This information was forwarded to the Government, with translation where necessary, on 16 August 1977. The document (reproduced in Appendix III) submitted by the ICFTU was prepared by Professor Jin Hajek for the Federal Assembly of the Czechoslovak Socialist Republic. Attached to it were letters of dismissal and other documentation concerning measures taken with regard to persons who signed or supported the "Charter 77 Manifesto", with an indication that the list of cases cited was not exhaustive. The organisation which submitted the representation also communicated a document entitled White Paper on Czechoslovakia, which, among other things, deals with these same questions and contains the text of this Manifesto (reproduced in Appendix IV).
15. 10. At its second meeting, on 8 November 1977, the Committee took note of a letter from the Government dated 11 October 1977 informing the Director-General that the question raised in the representation was still under examination. Under article 6 of the Standing Orders concerning the Procedure for the Discussion of Representations, the Committee decided to prolong until 15 January 1978 the time when the Government would be invited to make such statement on the subject as it might see fit, in accordance with article 4 (2) (d) of the above-mentioned Standing Orders.
16. 11. At its third meeting, on 28 February 1978, the Committee took note of the observations on the representation, communicated to the International Labour Office by the Government of Czechoslovakia by a letter of 6 February 1978 (Appendix V). Taking into consideration the general character of these observations, and the indication therein that the competent authorities had carried out an investigation of the questions raised in the representation, the Committee decided on the basis of article 8 (a) of the Standing Orders to give the Government a further opportunity to furnish supplementary information before 1 May 1978, and to defer its report to the May 1978 Session of the Governing Body. In a letter dated 19 May 1978 the Government indicated that the results of the above-mentioned investigation were embodied in its previous observations, and it communicated an addendum to these (reproduced in Appendix VI).
17. 12. At its last session, held on 29 May 1978, the Committee completed its examination of the information at its disposal. It reached its conclusions and adopted the present report.
18. Examination of the representation and of the reply received
19. 13. The representation alleges that the Government has taken repressive measures affecting the employment of authors or signatories of documents which brought to public attention criticism of the Government's policy in the field of human rights. According to the individual notifications and judicial decisions attached as Appendix III, dismissals with or without notice and other measures affected the employment of workers because they had signed or supported the Manifesto reproduced in Appendix IV, and court decisions held, in particular, that these dismissals had been validly carried out under sections 46 (1) (e) or 53 (1) (c) of the Labour Code.
20. 14. Sections 46 and 53 of the Labour Code of Czechoslovakia (LS 1975 - Cz. 2) enumerate a limited number of cases in which the employment relationship may be terminated with notice (s. 46) or, exceptionally, without notice (s. 53). Section 46 (l)(e) authorises dismissal with notice " if the worker does not meet the criteria laid down by law for the performance of the agreed job or, through no fault of the organisation, does not fulfil requirements that are an essential condition for the proper performance of his work; . . . ". Section 53 (l)(c) permits dismissal without notice " if the worker has endangered the safety of the State and his retention in the organisation until the expiry of the period of notice is impossible without danger to the due performance of the organisation's tasks." Some of the individual notifications attached in Appendix III also refer to section 53 (l) (b), which permits dismissal "if the worker has committed such a serious breach of labour discipline that his retention until the expiry of the period of notice is incompatible with the maintenance of labour discipline within the organisation; ".
21. 15. As regards the present state of the legislation, the Government stresses in particular in its observations on the representation (Appendices V and VI) that the grounds for termination of the employment relationship are limited to those authorised by sections 46 and 53 of the Labour Code. It states that section 53 (1) (c) links up with Article 4 of Convention No. 111, and that the present wording of section 46 (1) (e) is also in full compliance with the provisions of the Convention. In addition, it states that the observance of the Convention in cases of dismissal is assured by the supervision exercised by the courts, the possibility of complaints in case of violation of the law, as well as by trade union protection (prior consent of the works committee is required by section 59 of the Labour Code).
22. 16. Under Article 1 of Convention No. 111, the term " discrimination " includes in particular " any distinction, exclusion or preference made on the basis of... political opinion ... which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation " (paragraph 1 (a)). " Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination " (paragraph 2). Under Article 4 of the Convention, "Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice."
23. 17. As regards the relationship among these provisions of the Convention, the Committee of Experts on the Application of Conventions and Recommendations has observed that " in protecting workers against discrimination on the basis of political opinion, the Convention implies that this protection shall be afforded to them in respect of activities expressing or demonstrating opposition to the established political principles-subject only to the limitations referred to below-since the protection of opinions which are neither expressed nor demonstrated would be pointless, and that the protection afforded by the Convention is not limited to simple differences of opinion within the framework of the established principles". It made it clear that the definition of activities prejudicial to the security of the State or special requirements for certain specified forms of employment should not be such as to authorise measures inconsistent with the basic protection provided for by the Convention (Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4A), International Labour Conference, 57th Session, Geneva, 1972, pp. 203-204).
24. 18. The Committee of Experts had made the above-mentioned comments in regard to provisions found at sections 46(1) (e) and 53 (I) (c) of the Labour Code prior to 1975. These earlier provisions authorised the dismissal of a worker if "his activity has been such as to constitute a breach of the socialist social order and he is therefore not sufficiently reliable to hold his previous office or post. . .". These references were subsequently deleted from the Labour Code, and the Committee of Experts noted this with satisfaction in 1976. Nevertheless, it continued to request clarifications as to the scope of the present provisions of the Labour Code, particularly in regard to cases in which a worker could be considered to have endangered the security of the State. This question thus continued to be examined by the Committee of Experts and was discussed in the Conference Committee on the Application of Conventions and Recommendations in 1976 and 1977.
25. 19. The Committee observes that the question to be examined here does not concern the state of previous legislation, as the Government indicates at the beginning of its additional observations (Appendix VI). It also observes that the question raised does not concern the formal compliance of the terms of sections 46 and 53 of the Labour Code with the Convention's provisions, nor those of court or other procedures existing under national legislation. On the other hand, it is important to determine whether the cases in which, under these provisions, a worker is considered as having endangered the security of the State or as having failed to meet the requirements or the discipline required for a job, are themselves consistent with the basic protection provided for by the Convention.
26. 20. In its additional observations (Appendix VI) the Government states that the allegations referred to in the representation, on the subject of the situation subsequent to the beginning of 1977, concern persons who, after holding important posts in state administration, were engaged in activities aimed at the violation of the public order, at the hampering of the international position of the Czechoslovak Socialist Republic and at the achievement of a change of the socialist social order through unconstitutional methods. It refers to the tendentious character of the arguments of this group of persons on points such as the existence of hidden unemployment, the employment of women, the standard of living, admission to education. It states that the Czechoslovak constitutional system is, as in other States, protected by law against activities and attacks endangering it, and that the termination of employment was only carried out in a small number of cases, as a function of the concrete activity of the person and the incompatibility of such activity with his working assignment. The Government adds that freedom of expression is guaranteed by the Constitution; that citizens are at the same time obliged to uphold the Constitution and other laws and to pay heed to the interest of the socialist State and the society of working people; that persons are not subjected to sanctions for the expression of different political opinions, but that the permission to express opinions does not mean that to engage in activity prohibited by law or to violate the rules of employment.
27. 21. The Committee notes that, according to the notifications and decisions submitted in support of the representation, these notifications and decisions were motivated by the workers signing or adhering to a document such as the Manifesto reproduced in Appendix IV. This Manifesto contains various criticisms concerning the policy of the Government, and it is not for the Committee to assess whether these criticisms are well founded or inaccurate. Nevertheless, whatever the nature of the assertions in this document, the Committee does not consider the general statements of the Government as constituting an adequate response to the specific allegations concerning dismissals and other measures referred to in the representation. It does not emerge from the information available that the signing or adhering to such a document could in itself be considered, in relation to the principal protection envisaged by the Convention on matters of political opinion (see above, para. 17), as an activity against the security of the State or incompatible with the requirements of their forms of employment. Finally, the Committee notes that it does not emerge from the information available that the alleged decisions and measures were not in fact taken for the reasons referred to earlier in this paragraph, or that they have been reviewed.
28. 22. The Committee notes that in its observations concerning the representation, the Government has indicated its readiness to continue to co-operate with the supervisory bodies for the application of Conventions on the basis of article 22 of the Constitution, and it notes that it will indeed be for these bodies to pursue their examination of this question. However, for the reasons set forth above, the Committee does not feel able to recommend that the Governing Body consider the Government's reply to be satisfactory in the sense of the procedure for representations provided for in articles 24 and 25 of the Constitution.
29. Conclusion
30. CONCLUSION 23. In the light of the considerations set forth above, the Committee recommends to the Governing Body, on the basis of articles 8 and 9 of the Standing Orders concerning the procedure for the discussion of representations:
31. (a) that it decide to open the discussion on the application of article 25 of the Constitution, under which, if the statement received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement made in reply to it;
32. (b) that at the present session it fix a date during its 208th Session (November 1978) on which the deliberations concerning this affair shall take place;
33. (c) that, in conformity with paragraph 5 of article 26 of the Constitution, it invite the Government in question to send a representative to take part in its discussions.
34. Geneva, 29 May 1978.
35. (signed): H. Griffin, Chairman.
36. G. Polites.
37. H. Maier.