Informe provisional - Informe núm. 30, 1960

1. 209. The complaint of the Panhellenic Federation of Workers in Electricity and Public Utility Undertakings, dated 18 February 1958, was addressed directly to the I.L.O. By a letter dated 21 February 1958, the complaining organisation was informed of its right to furnish further information in substantiation of its complaint within a period of one month. The complaint was transmitted to the Greek Government, for its observations, by a letter dated 21 February 1958.
2. 210. At its 19th Session (Geneva, February 1958), the Committee decided to adjourn its examination of the case until it had received the observations of the Greek Government on the questions raised in the complaint of the Panhellenic Federation of Workers in Electricity and Public Utility Undertakings.
3. 211. In a communication dated 16 March 1958, the complaining organisation furnished further information in substantiation of its complaint. This information was transmitted to the Greek Government, for its observations, by a letter dated 21 March 1958.
4. 212. The Greek Government forwarded its observations in a communication dated 12 May 1958.
5. 213. The complaint of the World Federation of Trade Unions, dated 13 June 1958, was addressed directly to the I.L.O. On 26 June 1958, the complaining organisation was informed of its right to furnish further information in substantiation of its complaint within a period of one month. The complaint was transmitted to the Greek Government, for its observations, by a letter dated 26 June 1958. The Greek Government replied by a letter dated 21 July 1958.

A. A. The complainants' allegations

1. 214. The complainants allege that Mr. Dimitrios Yachnis, an employee of the Greek Electric Railways, General Secretary of the Electric Railway Employees' Union and a member of the executive of the Panhellenic Federation of Workers in Electricity and Public Utility Undertakings, was dismissed by his employers on 8 February 1958 in accordance with instructions given to them by Police Headquarters.
2. 215. This measure is alleged to have been taken pursuant to Act No. 1985 of 1952, which requires the managements of public utility undertakings to comply with recommendations made to them by the appropriate police authorities in connection with the protection of the installations and plant of these undertakings against fire or sabotage.
3. 216. In the present case, pursuant to this Act, the police, considering that the communist activities of the person concerned rendered him a dangerous individual, are alleged to have ordered his employers to get rid of him; the management of the electric railways, in obedience to this order, terminated the contract of Mr. Yachnis, with immediate effect.
4. 217. After stating that this was a direct and open intervention by the police to secure the dismissal of a worker who was also a trade union leader, the complainants allege that the political reasons involved were only a pretext for removing a trade union leader who was considered to be too active. The complainants refuse to believe that, after 17 years in the service of the electric railways, the fact that Mr. Yachnis was dismissed immediately after a strike and on the very eve of trade union elections, in which it was thought that he would again be entrusted with the confidence of the workers, is fortuitous.
5. 218. In the view of the complainants, these measures constitute a complete denial of the trade union rights of the workers and are in flagrant contradiction of the principles governing freedom of association-in particular, the principle that trade union militants shall not be prejudiced by reason of their trade union activities and the principle that workers may elect their representatives in freedom, the dismissal of Mr. Yachnis on the eve of the elections constituting an infringement of this right.
6. 219. As additional evidence the Panhellenic Federation of Workers in Electricity and Public Utility Undertakings annexes to its complaint a copy of a protest addressed by the Greek Electric Railway Employees' Union to the Chamber of Deputies and the Government, a copy of the letters from the employers of Mr. Yachnis terminating his contract, the text of Act No. 1985 of 1952 pursuant to which his dismissal was effected, the text of a question put by 26 members of the Chamber of Deputies protesting against the measure imposed upon him and three extracts from orders of the officers commanding military units in which Mr. Yachnis had served testifying to his irreproachable conduct during such service.
7. 220. In its reply the Government does not deny the dismissal of Mr. Yachnis and states that it was effected pursuant to Act No. 1985 of 1952, which it interprets in the same way as do the complainants.
8. 221. The Government intimates that the case amounts simply to a question of legal interpretation which it is for the courts to decide. In fact, states the Government, Mr. Yachnis maintains that as a trade union leader he is entitled to the protection of sections 1, 2 and 3 of Act No. 1803 of 1951, which provide that any person working under a contract of employment and holing the post of president or general secretary of any workers' trade union shall not be dischargeable, during his term of office and for one year thereafter, by notice of termination of the employment contract given by the employer. The issue that arises, therefore, according to the Government, is whether Mr. Yachnis is protected by the provisions mentioned above or whether his case falls under the later Act of 1952 on which his dismissal was based.
9. 222. The Government declares that this question is one which the courts would have to decide if Mr. Yachnis made application to them, as he is entitled to do ; the Government states, however, that it does not know whether he has availed himself of this right.
10. 223. In conclusion the Government states that Mr. Yachnis was an election candidate for the Left Democratic Union Party, and declares that this party corresponds to the former Communist Party, which is now illegal. It should be observed, in this connection, that the Left Democratic Union Party is legally recognised and functioning normally.
11. 224. The analysis of the complaints submitted and of the Government's observations reveals that there are three main issues before the Committee, which it considers appropriate to examine separately.
    • Question as to the Exercise of the Right of Appeal
12. 225. In the first place, it would seem from the Government's reply that Mr. Yachnis had a right of appeal against the measure taken with respect to him. It would appear, at least, that he could have applied to the courts for a determination as to whether he should have enjoyed the protection awarded to trade union leaders by Act No. 1803 of 1951 or whether his case fell within Act No. 1985 of 1952. The Government states that it does not know whether he has availed himself of this right of appeal.
13. 226. In a number of cases in the past the Committee has drawn attention to the fact that, where there is provision for national remedies before a court or an independent tribunal and such remedies have not been pursued with respect to the matters raised in a complaint, it must have regard to this fact when examining the merits of the complaint.
14. 227. In these circumstances the Committee recommends the Governing Body to request the Government to state whether, since the date of its reply, it has learned that Mr. Yachnis has availed himself of his right of appeal and, if so, to be good enough to furnish the text of the judgment together with that of the reasons adduced, or alternatively, in the event of no appeal having been lodged, to specify when the time-limit for filing such appeal expired or the date on which it will expire.
    • Question as to the Scope of Application of Acts Nos. 1803 of 1951 and 1985 of 1952
15. 228. It would also appear from the evidence before the Committee that, in their relation to the employees of public utility undertakings, there is a contradiction between the texts of these two laws. Sections 1, 2 and 3 of Act No. 1803 of 1951, the application of which appears to be general, provide that any person working under a contract of employment and holding the post of president or general secretary of a workers' trade union shall not be dischargeable, during his term of office and for one year thereafter, by notice of termination of the employment contract by the employer, unless there is a serious cause, in which case a decision is to be given by a tripartite committee presided over by a magistrate. On the other hand, section 1 of Act No. 1985 of 1952, which is intended to protect the installations of public utility undertakings against sabotage, requires the directors of public utility undertakings to comply with the instructions of the competent police authorities, who may demand the dismissal of any employee of such an undertaking if they consider this desirable in the interests of security.
16. 229. The Committee has expressed the view in previous cases' that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment - such as dismissal, demotion, transfer or other prejudicial measures - and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom.
17. 230. While this protection would seem to be ensured in Greece by Act No. 1803 of 1951, its effectiveness in the case of leaders of unions of employees of public utility undertakings would seem to be, at least, considerably reduced-if not entirely negatived -by the application of Act No. 1985 of 1952, which may be assimilated to national security legislation.
18. 231. In many cases in which it has had before it complaints of alleged infringements of freedom of association under a state of siege or emergency or by virtue of national security legislation, the Committee, while indicating that it is not called upon to comment on the necessity for or desirability of such legislation, which is a purely political consideration, has always taken the view that it must consider what repercussions the legislation might have on trade union rights.
19. 232. In these circumstances, noting the Government's statement that the respective areas of application of the two enactments in question are a matter for determination by the courts, the Committee recommends the Governing Body to ask the Government to state whether, apart from the particular case of Mr. Yachnis, there exists any jurisprudence on this question and, if so, what is the effect of such jurisprudence.
    • Question as to the Reasons for the Dismissal of Mr. Yachnis
20. 233. The Government and the complainants differ in their statements as to the reasons for the measure taken against Mr. Yachnis. While the complainants allege that it arose out of his trade union activities, the Government contends that, because it was taken pursuant to Act No. 1985 of 1952, the measure was the result of his political activities.
21. 234. In a number of earlier cases the Committee has been called upon to formulate conclusions on the application of measures which, even though of a political character and not intended to restrict trade union rights as such, may nevertheless affect the exercise of such rights. The Committee considers that, as in the present case the person concerned assumed responsibilities of a trade union character, the measure taken against him may, even if that was not the intention, have affected the exercise of trade union rights.
22. 235. Moreover, if in certain cases the Committee has reached the conclusion that allegations relating to measures taken against trade union militants did not call for further examination, this has been after it has received information from the governments showing sufficiently precisely and with sufficient detail that the measures were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which either were prejudicial to public order or a danger to the security of the State or were of a political nature.
23. 236. In the present case the Government does not give details as to the reasons why the police ordered measures to be taken against the person concerned. In these circumstances, and having regard, especially, to the fact that the dismissal complained of-affecting a trade union leader-occurred both following a strike and on the eve of trade union elections, the Committee considers that, before it can reach a conclusion in full knowledge of all the circumstances, it must obtain more detailed information with respect to the precise facts which caused the decision concerning Mr. Yachnis to be taken and, in particular, with respect to any specific activities which may have been held against him, and recommends the Governing Body to request the Government to furnish such information.