Informe provisional - Informe núm. 60, 1962

1. 110. When the Committee, which had already considered this case at its 25th Session (May 1960), resumed its examination of the case at its meeting on 23 February 1961, it submitted further conclusions in paragraphs 79 to 122 of its 52nd Report, which was approved by the Governing Body at its 148th Session (March 1961).
2. 111. Paragraph 122 of the Committee's 52nd Report reads as follows:
3. 122. As regards the case as a whole, the Committee recommends the Governing Body:
   • (a) to decide, with respect to the allegations relating to the suspension of the trade unions of the Sudan:
   • (i) to take note of the further information furnished by the Government with regard to the events preceding the suspension of trade union activity in the Sudan in November 1958, and of the Government's statement that this suspension by administrative authority was exceptional and unique and that it agrees with the view expressed by the Governing Body, when it adopted paragraph 90 (a) (i) of the Committee's 48th Report, that it is of paramount importance that trade union activities should not be subject to administrative suspension;
   • (ii) to take note also of the Government's statement that over 60 trade unions have applied for registration under the Trade Unions (Amendment) Ordinance, 1960, 45 of which were due to be registered by 31 December 1960, and that the Government can give further information in due course on the functioning of trade unions under the new legislation;
   • (iii) to request the Government to be good enough, bearing in mind the hope expressed by the Governing Body when it adopted paragraph 90 (a) (ii) of the Committee's 48th Report cited in paragraph 80 above, to continue to keep the Governing Body informed of further developments with regard to the formation and functioning of trade unions in the Sudan;
   • (b) to decide, with respect to the allegations relating to a trade union newspaper, to take note of the Government's statement that the question of allowing trade unions to express their opinions by publishing their own newspapers will be further considered, to reaffirm the importance which the Governing Body has always attached to the freedom of the trade union press, and to request the Government to keep the Governing Body informed of developments in this connection;
   • (c) to decide, with regard to certain matters arising out of the Trade Unions (Amendment) Ordinance, 1960:
   • (i) that, having regard to the Government's statement that following the amendments made in 1960 to sections 14 and 18 (4) of the Trade Unions Ordinance, 1948, the Judge of the High Court still has power to reverse the decision of the Registrar of Trade Unions in connection with the refusal or cancellation of registration of a trade union, there is no ground for it to give further consideration to this aspect of the legislation;
   • (ii) to note the Government's statement that the insertion of subparagraphs (g) and (h) in section 32 of the Trade Unions Ordinance has not changed the procedure followed in the past, according to which trade unions drew up their own Constitutions, and to suggest to the Government that, having regard to the principles enunciated in paragraph 114 above, the Government may care to re-examine the drafting of these subparagraphs with a view to making this fact more clear in the legislation;
   • (iii) to express the hope that the Government, bearing in mind the considerations set forth in paragraph 120 above, will reconsider the wording of section 21 (2) of the ordinance, as amended, with a view to providing that trade union accounts shall be audited by independent qualified auditors;
   • (iv) to note the Government's statement that the definition of " worker " contained in section 2 of the Trade Unions Ordinance, as amended in 1960, is to be reconsidered when the coming trade unions begin to function, and to request the Government to keep the Governing Body informed as to further developments in this connection;
   • (v) to express the hope that, having regard to the considerations set forth in paragraphs 101, 103 and 104 above with regard to sections 9 (1) and 27 (3) of the ordinance, as amended, the Government will consider amending these sections so as to permit the formation of occupational unions, and to request the Government to keep the Governing Body informed of developments in this connection;
   • (vi) to note the Government's statement that the question of permitting the formation of federations or Confederations will be considered when the workers feel that there is a great need for federations and that the question of affiliation with international organisations will be reconsidered later, to express the hope that the Government, having regard to the considerations set forth in paragraphs 107 and 108 above, will consider amending the legislation so as to permit of the formation of federations and Confederations and of affiliation of national organisations with international organisations of workers, and to request the Government to keep the Governing Body informed of developments in this connection.
4. 112. By letters dated 13 March and 21 April 1961 the Government was requested to furnish the further information referred to in paragraph 122 (a) (iii), (b) and (c) (iv), (v) and (vi) of the Committee's 52nd Report cited above. At its meeting on 30 May 1961 the Committee adjourned its examination of the case, as the information in question had not been received.
5. 113. On 13 June 1961 a complaint was addressed to the I.L.O by the Sudan Railway Workers' Union. The W.F.T.U submitted further communications to the I.L.O on 5 June and 11 July 1961. These three communications were transmitted to the Government for its observations.
6. 114. At its 29th Session (November 1961) the Committee again adjourned, its examination of the case, as it had not received either the further information previously requested from the Government or its observations on the three communications referred to in the preceding paragraph.
7. 115. The Government forwarded the further information and observations in question by a communication dated 28 December 1961.
8. 116. The Sudan has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Allegations relating to the Suspension of the Trade Unions of the Sudan

1. 117. These allegations and the observations previously made thereon by the Government were dealt with in the Committee's 48th and 52nd Reports. As indicated in paragraph 122 (a) (iii) of the Committee's 52nd Report (see paragraph 111 above), the Governing Body decided, at its 148th Session (March 1961), to request the Government to be good enough-bearing in mind the hope previously expressed by the Governing Body when it approved paragraph 90 (a) (ii) of the Committee's 48th Report that, now that new trade union legislation had been enacted, the Government would take steps to ensure that the workers shall be free to form organisations of their own choosing and that such organisations shall be able to organise their administration and carry on their activities in full independence and freedom-to continue to keep the Governing Body informed of further developments with regard to the formation and functioning of trade unions in the Sudan.
2. 118. The Government gives further information on this aspect of the case in its communication dated 28 December 1961.
3. 119. It will be recalled that, at its meeting on 23 February 1961, the Committee had before it a statement by the Government to the effect that by 6 December 1960 over 60 trade, unions had applied for registration under the Trade Unions (Amendment) Ordinance, 1960, 45 of which were due to be registered by 31 December 1960. In paragraph 122 (a) (ii) of its 52nd Report the Committee recommended the Governing Body to take note of this statement by the Government.
4. 120. In its communication dated 28 December 1961 the Government states that 48 trade unions, representing 42,000 industrial workers, are now registered under the said ordinance, and that applications by ten more unions are under consideration.
5. 121. In these circumstances the Committee recommends the Governing Body:
6. (a) to take note of the Government's statement that 48 trade unions, representing 42,000 industrial workers, have now been registered under the Trade unions (Amendment) Ordinance, 1960, and that ten further applications for registration are under consideration;
7. (b) to request the Government to be good enough, bearing in mind the hope expressed by the Governing Body when it adopted paragraph 90 (a) (ii) of the Committee's 48th Report, cited in paragraph 117 above, to continue to keep the Governing Body informed of further developments with regard to the formation and functioning of trade unions in the Sudan.
8. Allegations relating to the Trade Union Press
9. 122. Allegations relating to a trade union newspaper, El Taliaa, and the Government's earlier observations thereon were examined in paragraphs 80 to 82 of the Committee's 48th Report. At its 27th Session (February 1961) the Committee had before it a statement contained in the Government's communication dated 6 December 1960 to the effect that the question of allowing trade unions to express their opinions by publishing their own newspapers would be further considered and that progress reports and information would be communicated to the Governing Body in connection with this matter. The Committee recommended the Governing Body to take note of that statement, to reaffirm the importance which the Governing Body has always attached to the freedom of the trade union press and to request the Government to keep the Governing Body informed of further developments.,
10. 123. In its communication dated 5 June 1961 the W.F.T.U alleges that El Taliaa, the organ of the Sudan Federation of Trade Unions, is still banned by administrative order, although no charges have ever been laid against its editorial staff, and that the workers are completely deprived of the right to express their opinions in writing. When the new Labour Code was issued, it is alleged, some workers tried to petition the Government to make their views known, whereupon they were arrested and imprisoned for terms of from three to 12 months. One of these was El Hag Abdul Rahman, who, when he was Secretary of the Preparatory Committee for the Railway Workers' Federation, criticised the Code at a mass meeting, after which, it is alleged, he was arrested and detained for several months.
11. 124. In its communication dated 28 December 1961 the Government states that it has " no objection in principle " to " allowing trade unions to express their opinions by publishing their own newspapers " and that " it is left to the trade unions " to find the financial means to run such newspapers. The Government does not comment on the allegations made by the W.F.T.U in its communication dated 1 June 1961.
12. 125. In these circumstances the Committee recommends the Governing Body to take note of the Government's statement that it has no objection in principle to allowing trade unions to express their opinions by publishing their own newspapers; to request the Government to inform the Governing Body whether this statement means that the freedom of the trade union press has now been re-established or will now be re-established in the Sudan, in accordance with the hope expressed by the Governing Body when it approved paragraph 90 (b) (ii) of the Committee's 48th Report; to request the Government to furnish its observations on the further allegations made by the W.F.T.U in its communication dated 5 June 1961, to which reference is made in paragraph 123 above.
13. Allegations relating to Arrests of Trade Unionists
14. 126. At its 22nd Session (May 1959) the Committee had before it allegations that Messrs. El Shafia Ahmed El Sheikh, General Secretary of the Sudan South Western Trade Union Federation, Gasim Amin, Secretary of the Federation, Shakir Mursal, editor of the trade union newspaper El Taliaa, and nine other trade union leaders had been arrested on 17 December 1958. The Committee, after examining the observations furnished by the Government on 21 February 1959, requested the Government to furnish further information. At its meeting on 9 and 10 November 1959 the Committee had before it a further communication from the Government, dated 25 August 1959, in which it was stated that Messrs. El Shafia Ahmed El Sheikh, Shakir Mursal and Taha Mohamed Ali had each been sentenced to five years' imprisonment after being defended by counsel before the court martial on the charge of holding an illegal meeting in terms of section 4 of the Unlawful Societies Ordinance, 1924, and that Messrs. Gasim Amin and Mohamed Ahmed Omer were sentenced to two years' imprisonment and Messrs. Hassan Mohamid Salih and Awad Sharaf Eddin to one year's imprisonment, the others being acquitted because of lack of evidence. The Committee observed that, apart from stating the charge of which they were convicted, the Government had given no indication as to the precise reasons for which those sentenced were found guilty and furnished no information enabling the Committee to judge whether or not the meeting in question-admitted by the Government to have been held on the premises of a trade union newspaper-was directly related to the exercise of trade union rights. The Committee decided, therefore, to request the Government to furnish more precise information, including copies of the judgments given, as to the reasons adduced by the court martial which imposed the sentence. To this request the Government replied in a communication dated 13 March 1960 that the authorities concerned were convinced that there was no need whatsoever to divulge such information as the matter did not in any way relate to the trade union activities of those concerned.
15. 127. It was in these circumstances that the Committee at its 25th Session (May 1960) submitted to the Governing Body the conclusions contained in paragraphs 83 to 89 of its 48th Report, in which it recapitulated the history of its examination of these allegations as set forth in paragraph 125 above. In paragraph 89 of that report, the Committee, noting that sentences of from one to five years' imprisonment had been imposed by court martial in respect of participation in a meeting on trade union premises for reasons which the Government alleged had no relation to trade union activities but which it had not specified, recommended the Governing Body to note with regret that the Government had not seen fit to furnish the Committee with the information requested, and to draw the attention of the Government to the importance which it has always attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions. This recommendation was approved by the Governing Body at its 146th Session (June 1960).
16. 128. At its meeting on 23 February 1961 the Committee had before it a communication dated 6 December 1960 in which the Government stated that the arrests and trials had been in accordance with existing law but that, owing to the exceptional circumstances, the trials were by court martial instead of by the ordinary courts. The Committee took the view that there was nothing in this statement to cause it to add to or modify the recommendations made in its 48th Report.
17. 129. The matter has been raised again, together with new allegations, in the communication submitted to the I.L.O on 5 June 1961 by the W.F.T.U. The complainant declares that Messrs. Ahmed El Sheikh, Shakir Mursal and Taha Mohamed Ali are still in prison. Commenting on the fact that the Government had refused to divulge the reasons adduced at their court martial and had maintained that these persons were not imprisoned as a result of their trade union activities, the W.F.T.U alleges that in fact they were accused of maintaining contact with the W.F.T.U and of assisting in the publication of the Arabic edition of the Review of the W.F.T.U in the Sudan. According to the complainant, Gasim Amin was sentenced simply because he had written an article for the Review in 1957, more than one year before the present Government came into power. The complainant states that section 4 of the Unlawful Societies Ordinance, 1924, as amended in 1950, provides that any contact with the W.F.T.U shall be considered as a criminal offence.
18. 130. The complainant then alleges that more trade unionists were sentenced by the Atbara military tribunal on 22 December 1960: Abdul Fattah Osman, worker in the Atbara railway workshops, three years' imprisonment; Khidir Nasr, worker at the Atbara cement factory, two years; Khalifa Mahgoub, railway accountant at Atbara, two years; Sir El Khatim Rashwan, employee with the railway telegraphic section at Atbara, 18 months; Ahmed El Badawi El Salflawi, worker in the Atbara railway mechanical workshops, 18 months; Ahmed Ali Ibrahim, employee at the Atbara railway traffic control office, 18 months; El Hag Mohammed Salih, railway storeman at Atbara, nine months. It is alleged that these persons were convicted because they took part in a peaceful demonstration to claim the free right to form a federation of railway workers, and that, as in the case of all proceedings before military tribunals in the Sudan, they were not allowed to instruct barristers to defend them. The complainant demands that the I.L.O should send a committee of inquiry, including a representative of the W.F.T.U, to the Sudan, to examine the trade union situation as a whole.
19. 131. As no invitation to send any representative for the purpose of making an inquiry has been received from the Government of the Sudan, the Committee does not feel called upon to examine the proposal made by the W.F.T.U at this stage, but it is clear that any inquiry undertaken by the International Labour Organisation in such circumstances would have to be completely objective in character, like the visit recently made on the invitation of the Government of Libya by Lord Forster of Harraby, who was appointed for the purpose, by the Director-General of the International Labour Office, and could not therefore include a representative of the complaining organisation.
20. 132. In its communication dated 28 December 1961 the Government makes no reference to the matters alleged in the complaint of the W.F.T.U which are analysed in paragraphs 129 and 130 above. The Committee therefore recommends the Governing Body to request the Government to furnish its observations on these allegations.
21. Certain Matters Arising out of the Trade Unions (Amendment) Ordinance, 1960
22. 133. At its meeting on 23 February 1961 the Committee considered five separate matters arising out of the Trade Unions (Amendment) Ordinance, 1960-provisions relating to the formation of trade unions, provisions relating to federations and Confederations and affiliation with international organisations of workers, provisions relating to appeals against refusal or cancellation of the registration of trade unions, provisions relating to the powers of the Commissioner of Labour and provisions relating to the auditing of trade union accounts. On the three last of these five matters the Committee submitted definitive conclusions to the Governing Body, which made certain suggestions to the Government ; they are not, therefore, considered further in the present report.
23. (a) Provisions relating to the Formation of Trade Unions
24. 134. At its 25th Session (May 1960) the Committee observed that section 9 (1) of the principal ordinance, as amended in 1960, raises to 50 the number of promoters required to form a new union. The Committee pointed out that the Committee of Experts on the Application of Conventions and Recommendations had expressed the view that the establishment of a trade union may be considerably hindered or even rendered impossible when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a works union must have at least 50 founder members. This requirement, observed the Committee, had to be considered in conjunction with the new section 27 (3) of the ordinance as amended, which provides that " no worker shall join any trade union other than that formed by the workers of the Government Unit or the private establishment in which he is engaged ". The Committee, therefore, drew the attention of the Government to the view of the Committee of Experts cited above. The Committee also requested the Government to state whether the effect of the said section 27 (3) is to prevent the formation of occupational unions and so to deprive workers in undertakings employing less than 50 persons of the right to belong to trade unions, a situation which would clearly be incompatible with the principle, embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers without distinction whatsoever should have the right to establish and join organisations of their own choosing.
25. 135. In its communication dated 6 December 1960 the Government stated that the raising of the figure to 50 was intended to rid the labour movement of short-lived unions existing on paper only. There must also be sufficient contributions to enable the union to have an established office. The Government declared that several unions in the past had no offices and kept no proper register of members. In the Government's view the new provision would strengthen the unions' bargaining ability. Section 27 (3) was intended to favour " house associations " within a single government department or private firm - the type of association which has " appeal for the unsophisticated worker ". At present it was not intended to encourage occupational unions. In this connection the Government pointed out that the Trade Disputes Ordinance, 1960, applies to any trade dispute between employers and workers, whether the latter are members of a trade union or not. But, concluded the Government, the present situation might be changed in the light of future experience and practice.
26. 136. At its meeting on 23 February 1961 the Committee observed that it would therefore appear that under the legislation now in force there exists no right to form occupational trade unions and that freedom of association is limited to the formation of unions in single undertakings or enterprises, but even in the latter event only if the undertaking or enterprise is so large that a union of its employees can be promoted by not less than 50 of those employees. It seemed to follow that workers in undertakings or enterprises employing less than 50 persons can exercise no right of association at all and that even in large undertakings and enterprises its exercise by any of the workers employed therein is restricted until not less than 50 have combined to promote a trade union.
27. 137. The Committee also pointed out at its meeting on 20 May 1960 that the definition of " worker " in section 2 of the ordinance as amended in 1960 covers only persons who perform " manual work, whether skilled or unskilled ", so that all except purely manual workers would now seem to be deprived of the right to organise. Moreover, the definition of " worker " also excludes " classified officials or unclassified employees of the Government ".
28. 138. In its communication dated 6 December 1960 the Government stated that the question of this definition would definitely be reconsidered when the coming trade unions began to function.
29. 139. In these circumstances the Committee, at its meeting on 23 February 1961, having regard to the considerations set forth in paragraph 134 above and to the Government's replies to the questions put to it by the Committee, recommended the Governing Body, in paragraph 106 of its 52nd Report:
30. ......................................................................................................................................................
31. (a) to note the Government's statement that the definition of "worker" contained in section 2 of the Trade Unions Ordinance, as amended in 1960, is to be reconsidered when the coming trade unions begin to function and to request the Government to keep the Governing Body informed as to further developments in this connection;
32. (b) to express the hope that, having regard to the considerations set forth in paragraphs 101, 103 and 104 above with regard to sections 9 (1) and 27 (3) of the ordinance, as amended, the Government will consider amending these sections so as to permit the formation of occupational unions, and to request the Government to keep the Governing Body informed of developments in this connection.
33. 140. In its communication dated 28 December 1961 the Government states, with reference to sections 9 (1) and 27 (3) of the ordinance as amended, that it still considers it necessary at this stage for trade unions to be formed on " the house association " or " vertical pattern " within a single department of government or private firm, and that the reasons previously expressed by the Government for not encouraging occupational unions at present are still valid. Future economic and social developments will no doubt change this situation, declares the Government, and the Governing Body will be kept informed. The Government declares that the definition of " worker " contained in section 2 of the ordinance, as amended, has not so far " attracted any queries from interested parties ", but the Government adds that it will " be very willing to reconsider this definition in future on the request of interested categories of employees " and in the light of " experience gained from the functioning of the present trade unions ".
34. 141. It is now over a year since the Government stated in its communication dated 6 December 1960 that it was following a policy of favouring " house associations " and of not encouraging occupational unions, but that this situation might be changed in the light of future experience and practice. Again, it was on 6 December 1960 that the Government stated that the question of the definition of " worker " in section 2 of the ordinance " will definitely be reconsidered when the coming trade unions begin to function ". They have begun to function; there are 48 trade unions in operation, all, according to the Government's communication of 28 December 1961, representing only " industrial " workers.
35. 142. In these circumstances the Committee recommends the Governing Body:
36. (a) to draw the attention of the Government to the importance which the Governing Body attaches to the generally accepted principle that workers without distinction whatsoever should have the right to establish and join trade union organisations;
37. (b) to express the hope that the Government will now consider amending section 2 of the Trade Unions Ordinance, as amended in 1960, so as to give full effect to the principle enumerated in subparagraph (a) above;
38. (c) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection;
39. (d) to draw the attention of the Government to the importance which the Governing Body attaches to the generally accepted principle that workers should have the right to establish and join organisations of their own choosing;
40. (e) to express the hope that the Government, having regard to the considerations set forth in paragraphs 134, 136 and 137 above, will now consider amending sections 9 (1) and 27 (3) of the Trade Unions Ordinance, as amended in 1960, so as to give full effect to the principle enunciated in subparagraph (d) above;
41. (f) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
42. (b) Provisions relating to Federations and Confederations and to Affiliation with International Organisations of Workers
43. 143. At its meeting on 20 May 1960 the Committee observed that section 27 (4) of the ordinance, as amended in 1960, which provides that any trade union the members of which are engaged by one employer shall not unite or federate or otherwise affiliate with any other trade union, was not compatible with the generally accepted principle, embodied in Article 5 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers' organisations should have the right freely to form federations and Confederations. As it was not entirely clear whether the section covered all types of unions, the Committee requested the Government to explain under what circumstances, if any, trade unions may federate under the law as it now stands and under what circumstances trade unions may amalgamate (having regard to the fact that the ordinance of 1960 had repealed the earlier provisions concerning amalgamation).
44. 144. The Committee also observed that, according to the new section 27 (1) of the ordinance, no registered trade union may affiliate or take joint action with any organisation not covered by the ordinance, and that this provision would appear to deprive trade unions of the right to affiliate with international organisations of workers, a right which is generally recognised and which is embodied in Article 5 of the said Convention.
45. 145. In its communication dated 6 December 1960 the Government stated that the question of permitting the formation of federations and Confederations would be considered when the workers felt that there was a great need for federations. As the formation of federations and Confederations was not allowed at present, added the Government, it would be difficult to allow individual unions to affiliate with outside bodies, but this matter would be reconsidered later.
46. 146. In these circumstances the Committee, at its meeting on 23 February 1961, recommended the Governing Body, in paragraph 110 of its 52nd Report:
47. ......................................................................................................................................................
48. (a) to note the Government's statement that the question of permitting the formation of federations or Confederations will be considered when the workers feel that there is a great need for federations and that the question of affiliation with international organisations will be reconsidered later;
49. (b) to express the hope that the Government, having regard to the considerations set forth in paragraphs 107 and 108 above, will consider amending the legislation so as to permit the formation of federations and Confederations and of affiliation of national organisations with international organisations of workers; and
50. (c) to request the Government to keep the Governing Body informed of developments in this connection.
51. 147. In its communication dated 28 December 1961 the Government declares that the need for the formation of federations and Confederations by the workers " is not yet felt ", but that, " whenever the workers show any genuine desire for the formation of such federations and Confederations, the Government will not fail to allow them to fulfil such a desire ", while the question of allowing national organisations to affiliate with international organisations " is going to be reconsidered with the formation of federations and Confederations ". The Government promises to keep the Governing Body informed as to future developments in connection with these matters.
52. 148. The Committee observes that in its communication dated 5 June 1961 the W.F.T.U makes the allegation (see paragraph 130 above), on which the Government has refrained from presenting its observations, that it was because they demonstrated to show their desire to form a federation that seven trade unionists were sentenced by a military court on 22 December 1960 to terms of imprisonment of from nine months to three years.
53. 149. The observations made by the Government in its communication dated 28 December 1961 do not reveal any substantial change in the situation since 6 December 1960 (see paragraph 145 above).
54. 150. In these circumstances the Committee recommends the Governing Body:
55. (a) to draw the attention of the Government to the importance which it attaches to the generally recognised principles that workers' organisations should have the right to establish and join federations and Confederations and that any such organisation, federation or Confederation should have the right to affiliate with international organisations of workers;
56. (b) to point out to the Government that the question as to whether a need to form federations and Confederations is felt or not is a matter to be determined solely by the workers and workers' organisations themselves after their right to form them has been legally recognised;
57. (c) to express the hope that the Government will now consider amending the provisions of the Trade Unions Ordinance, as amended in 1960, so as to give full effect to the principles enunciated in subparagraph (a) above;
58. (d) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
59. Allegations relating to the Dissolution of the Sudan Railways Workers' Union
60. 151. In a communication addressed to the President of the 45th Session of the International Labour Conference on 13 June 1961 the Sudan Railways Workers' Union complains that, because the employers (the Railways Department) refused to observe the provisions of the Trade Disputes Act, 1960, and failed to meet the demands of the union, the latter served due notice on the employers, pursuant to the Act, of its decision to call a strike, whereupon, it is alleged, the Supreme Council for the Armed Forces of the Sudan arbitrarily dissolved the union.
61. 152. In its communication dated 11 July 1961 the W.F.T.U alleges that on 13 June 1961 the Supreme Council for the Armed Forces adopted a resolution declaring the Sudan Railway Workers' Union dissolved as from 16 June 1961. According to the text thereof cited by the complainant, this resolution was adopted " in view of the wrong attitude displayed by the Sudan Railway Workers' Union, its open defiance of the laws by serving notice of an illegal strike, its insistence on its attitude despite repeated advice, explanation and clarification of the Trade Disputes Act, 1960, and because the intended strike will have an adverse effect on the country's economy ". The complainant declares that the dissolution was contrary to section 17 of the Trade Disputes Act, which prescribes penalties for persons who take part in an illegal strike but does not permit of the dissolution of a union; according to the complainant, none of the strikers were ever charged under that section. The complainant considers that the strike due to begin on 17 June 1961, " in support of the workers' just demands for higher wages and better working conditions ", was thus made a pretext for arbitrary action by the Government.
62. 153. In its communication dated 28 December 1961 the Government explains the procedures laid down in the Trade Disputes Act, 1960. According to section 5 (1) of the Act, when any dispute arises the parties must negotiate together within a period of three weeks; if they reach agreement, that agreement shall be binding. Section 6 (1) provides that, if such negotiation fails, either party may invoke conciliation by the Commissioner of Labour; under section 6 (5) the latter is accorded a period of three weeks within which to endeavour to effect a settlement by agreement. If his efforts fail, the matter shall be referred to a conciliation board (section 7 (1)), comprising a magistrate, two conciliators appointed by the Commissioner of Labour and one representative nominated by each party to the dispute (section 7 (2)). The hearing by the board shall take place within 15 days of such reference (section 7 (3)) and, within a further three weeks, the board shall either effect a settlement (section 7 (4)) or, failing this, make a report on the dispute to the Commissioner of Labour (section 7 (5)). The Commissioner shall then refer the dispute to an arbitration tribunal, if both parties consent (section 8). Such reference to arbitration may be undertaken by the Minister of Information and Labour without the consent of the parties, however, if the dispute is in an essential industry, " or if he is satisfied that the dispute may disturb the public tranquillity or the distribution of supplies or public utilities or if he thinks fit so to do " (section 9). The arbitration tribunal comprises a magistrate (appointed by the Chief Justice), a representative of a trade union not directly connected with the dispute, nominated by the disputing union, an employer representative not directly connected with the dispute, nominated by the disputing employer, and two other persons who have no direct connection with the dispute appointed by the Minister of Information and Labour (section 10). Within 15 days of the referral to the tribunal, the chairman of the arbitration tribunal shall appoint the day of hearing (section 11). Awards of the tribunal are binding (section 14). Section 16 prohibits any strike or lockout (a) before applying for negotiation, or when an application is submitted by the workers or employer as the case may be to the Commissioner of Labour for conciliation, or while the conciliation or arbitration procedures are taking place; (b) during the period of currency of any agreement or decision arrived at by negotiation or conciliation or arbitration; and (c) when the dispute is not a trade dispute. Section 16 also provides that " it is forbidden to strike or take any decision declared by the Head of the State to be harmful to the public interest ". Section 17 provides that strikes or lockouts prohibited by section 16 are illegal, and that if any person declares, organises, instigates, incites others to take part in, or takes part in such strikes or lockouts, he shall be liable to imprisonment or a fine or both.
63. 154. Since the entry into force of the Act in February 1960, declares the Government, 15 disputes have been reported. Eight of these were the subject of successful conciliation by the Commissioner of Labour, the rest being settled by negotiation. No case has ever reached a conciliation board or arbitration. The only exception which disturbed industrial peace was the case involving the Sudan Railway Workers' Union. The Sudan Railway Workers' Union was at fault, declares the Government, because it did not comply with the statutory procedure. The first stage of initial negotiation having failed, the employers (the Railways Department) made application, according to section 6 of the Trade Disputes Act, for conciliation by the Commissioner of Labour; the Government maintains that the union disregarded all advice from the Commissioner of Labour concerning the legal obligations imposed by the Act. The period April-July is the busiest period of the year for the railways, which are then engaged in transporting all the country's export crops, including cotton (the main product), and in the carriage of pilgrims to and from the port of departure for Saudi Arabia. The Registrar of Trade Unions did not use his powers to cancel the registration of the union under the Trade Unions (Amendment) Ordinance, 1960. The matter was referred to the Supreme Council for the Armed Forces, the " highest legislative authority ", for decision, in the hope that the union would decide in the meantime to have recourse to statutory procedures for settling the dispute. As this hope was not realised, the Supreme Council, having regard to the danger threatening the national economy, decided to dissolve the union.
64. 155. 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 noted on a number of occasions that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. At the same time the Committee has emphasised that, in exercising the right to strike, workers and their organisations must have due regard to temporary restrictions placed thereon, e.g. cessation of strikes during conciliation and arbitration proceedings in which the parties concerned can take part at every stage. In doing so, however, the Committee has stressed that when restrictions of this kind are placed on the exercise of the right to strike, the ensuing conciliation and arbitration proceedings should be " adequate, impartial and speedy ".
65. 156. In the present case the Committee has before it the provisions of the Trade Disputes Act, 1960, on which the Government specifically bases its position. It would seem that the trade union representing the railroad workers did not observe the temporary restrictions placed on their exercise of the right to strike in that, instead of participating in a conciliation procedure which had been lawfully invoked by the other party to the dispute and which would appear to be sufficiently adequate and impartial to safeguard the workers' interests, it gave notice of an intention to strike which was not in compliance with that procedure. Such a strike was clearly unlawful under section 16 (a) of the Act and the fact that the strike of railway workers was considered as unlawful does not appear, in all the circumstances and having regard to the other provisions of the Act, to constitute in itself an infringement of trade union rights.
66. 157. The measures taken to deal with this unlawful strike, however, are another matter. The only penalties prescribed in the Trade Disputes Act, 1960, are those mentioned in section 17-imprisonment and/or fines to be imposed on the persons who organise, participate, etc., in unlawful strikes. No section of the Act prescribes dissolution of a trade union in such an event. Further, when dissolution was pronounced, it was pronounced not by a court but by the Supreme Council for the Armed Forces, described by the Government as the " highest legislative authority ".
67. 158. In a considerable number of cases the Committee has emphasised the importance which it attaches to the generally recognised principle that workers' organisations should not be liable to be dissolved or suspended by administrative authority. In the present case the Sudan Railway Workers' Union was dissolved by resolution of the Supreme Council for the Armed Forces, the highest legislative authority since the army assumed power. In Case No. 248, relating to Senegal, a case of emergency subsisted and a union which called an unlawful strike was dissolved by governmental decree. In that case the Committee recommended the Governing Body to draw the attention of the Government to the view which it had previously expressed that dissolution by the Executive in exercise of the legislative functions with which the Government is endowed, like dissolution by virtue of administrative powers, does not ensure the right of defence which normal judicial procedure alone can guarantee and to the importance which it attaches to the principle that workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority. In the present case the Committee makes the same recommendation to the Governing Body.
68. 159. There is one point in the provisions of the Trade Disputes Act, 1960-the text of which was communicated to the Committee by the Government-which would appear to call for comment, having regard to the jurisprudence of the Committee. Under section 8 of the Act arbitration is normally voluntary, the reference to arbitration requiring the consent of both parties to the dispute. But under section 9 the competent Minister may refer a dispute to arbitration without the consent of the parties - i.e., there is compulsory arbitration-if the dispute is in an essential industry, or between the Government as an employer and its workers, or if he is satisfied that the dispute may disturb the public tranquillity, or the distribution of supplies or public utilities, "or if he thinks fit so to do ". This provision has also to be read in conjunction with the proviso in section 16, which not only prohibits strikes but also prohibits the taking of " any decision declared by the Head of the State to be harmful to the public interest ". The Act contains no definition of what is an essential industry. Sections 9 and 16 appear to leave the public authorities an unfettered discretion in saying what is an essential industry or what industries or occupations shall be treated as such, on any given occasion, so far as compulsory arbitration and the exercise of the right to strike are concerned.
69. 160. In Case No. 146, relating to Colombia, the Committee, observing that the Government had the right to include in the definition of those public services in which strikes were forbidden any others that, in the opinion of the Government, affected the safety, health, education and economic or social life of the population, and the power to decide, in consultation with the Council of State, what forms of employment fell within the categories concerned, recommended the Governing Body to draw the attention of the Government of Colombia to the possibility of abuse present in such a situation. With regard, moreover, to the provision in section 9 of the Trade Disputes Act, 1960, according to which a compulsory reference to arbitration may be undertaken by the Minister in all cases in which the Government is the employer, it would seem appropriate to recall that, in Case No. 179 relating to Japan, the Committee, observing that the law prohibited strikes in all publicly owned corporations and undertakings irrespective of their nature, recommended the Governing Body to draw the attention of the Government of Japan to the fact that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential and those which are not.
70. 161. The Committee, therefore, recommends the Governing Body to suggest to the Government that it may care to reconsider the provisions of sections 9 and 16 of the Trade Disputes Act, 1960, in the light of the considerations set forth in paragraph 160 above.