Informe definitivo - Informe núm. 214, Marzo 1982

1. 107. The complaint by the Air Traffic Controllers' Association of Greece (EEEKE) is contained in communications dated 3 and 19 December 1980. Subsequently, on 23 February 1981, the EEEKE forwarded additional information in support of its complaint. The Government, for its part, sent its observations in a letter dated 15 October 1981.
2. 108. Greece has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainant

1. 109. In its initial communications, the complainant alleges that the Government, pursuant to the Civil Mobilisation Act, violated the right to strike enjoyed by air traffic controllers. Under the Greek Constitution civil servants have the right to strike, which is regulated by Act No. 643/77. The complainant adds that its organisation complied with the statutory procedures before taking the decision to call a series of 48-hour strikes.
2. 110. The complainant specifies that, before the strike began, the Government decided to conscript for duty 60 per cent of the active controllers, who are union members, thus obliging them to work during the strike against their will. According to the complainant, the Government justified its action by invoking Ordinance No. ND 17/1974 which regulates civil planning in the event of a war-time crisis or state of emergency, such as major earthquakes, etc., when the social or economic situation of the entire country is in jeopardy.
3. 111. The complainant also states that, by way of protesting against these measures, the executive board of the union published a newsletter informing the union's members of the obligation to work imposed by the Government and the penalties to which those who refused to comply were liable. It adds that the Director of Civil Aviation subsequently accused the union's President and Secretary-General, who had signed the newsletter, of criticising government action in violation of civil servants' duties. The complainant alleges that while a civil servant does not have the right to criticise government action, members of a trade union do have that right, in accordance with the Constitution, the laws of the land and common sense.
4. 112. It further states that during the strike another member of the executive board was transferred to a different unit, outside the area control centre where he was working.
5. 113. In its subsequent communication of 23 February 1981, the complainant refers to a request which the Minister of Transport made to the court to declare the strike illegal. That request was rejected by the court on 30 September 1980. The complainant also states that the Civil Aviation Administration imposed disciplinary penalties, consisting in withholding 10 days' salary, on the President and Secretary-General of the Association for having published the newsletter and criticising the measures of civil mobilisation.
6. 114. Lastly, the complainant organisation refers to a trial related to flight delays during the heavy summer air traffic in 1979 when the Civil Aviation Administration had attempted to intimidate the union's executive board by accusing it of endangering the safety of aircraft.

B. The Government's reply

1. 115. In its reply of 15 October 1981, the Government states that in December 1980 the EEEKE called and carried out a series of 48-hour strikes over a 12-day period. For reasons of public interest and in a concern to serve the community and avoid any risks at the national level, it had been considered necessary to mobilise 29 per cent of the personnel in order to ensure the minimum operation of airports.
2. 116. The Government specifies that the period chosen for calling and carrying out the strikes was critical because of the final steps involved in Greece's accession to the EEC, the end of year holidays and the transport of families of Greek migrants. It was a high season of domestic air traffic and connections between the various regions of the country could not be interrupted. The Government states that the measure adopted, which it regards as completely justified, did not aim at exercising, even indirectly, any pressure to do away with the right to strike, but was intended solely to cope with the special seasonal needs and to serve the interests of the community.
3. 117. As regards the disciplinary sanctions taken against the President and Secretary-General of the EEEKE, the Government considers that such measures are a legitimate application of the administrative machinery for supervising government employees and were justified by the indecent and insulting language used in the newsletter distributed by the complainant. It adds that no action based on trade union activities has ever been instituted in the civil aviation service and that the members of the EEEKE executive board enjoy full freedom in exercising their rights.
4. 118. Regarding the transfers of trade unionists, the Government states that these took place within the airport itself, and were honorary transfers to control posts made after the strike was over.
5. 119. Lastly, the Government refers to the movement organised in 1979 by the EEEKE, which had resulted in considerable delays in air traffic and in, legal proceedings.

C. The Committee's conclusions

1. 120. This case relates to strikes organised by the air traffic controllers, particularly at the end of 1980, and the consequent measures taken by the Government, namely conscription for duty of part of the personnel and acts of anti-union discrimination.
2. 121. In a recent case, the Committee had the occasion to examine complaints concerning strikes called by air traffic controllers. It considered that the withdrawal of services by such employees could endanger the life and safety of large numbers of air passengers and flying staff and that the exclusion of these employees from the right to strike does not constitute a violation of the principles of freedom of association.
3. 122. In the present case, the Committee observes that the air traffic controllers enjoy the right to strike. However, the Government proceeded to requisition measures justified, in its opinion, by the special seasonal needs and the interests of the community.
4. 123. In previous cases' the Committee has considered that it is undesirable to resort to mobilisation or requisition measures except for the purpose of maintaining essential services in circumstances of the utmost gravity. In the present case, even though the Government's reply does not say that such circumstances existed, it nevertheless appears reasonable that the right to strike granted to the air controllers should, owing to the functions they perform, have been made subject to the obligation to keep on duty a certain number of staff. Owing to the conflicting information supplied by the complainant and the Government about the number of workers requisitioned, the Committee is not able to determine the extent of the mobilisation measures taken by the Government. The Committee nevertheless considers that, in order to ensure that the measures would be acceptable to the trade union organisation and that the negotiations would take place in an atmosphere of confidence, the minimum service should have been restricted to the operations necessary to avoid endangering the life or safety of air passengers and flight crews.
5. 124. Concerning the disciplinary sanctions taken against the President and Secretary-General of the EEEKE, the Committee notes that these measures were taken following the publication of a newsletter about the dispute which, according to the Government, was worded in insulting language. In this regard, the Committee must recall that the right to express opinions through publications is one of the essential elements of trade union rights. In the present case, an administrative procedure was initiated which resulted in the withholding of ten days' salary. The Committee considers it useful to recall the importance of affording the persons concerned the possibility of appealing to the courts against administrative decisions which they consider to constitute violations of freedom of association.
6. 125. Regarding the transfers of two persons, the Committee notes the conflicting nature of the information supplied by the complainants and by the Government. Although it is unable to take a position on the justifications advanced by the Government, the Committee recalls generally that protection against acts of antiunion discrimination should cover not only hiring and dismissal but also any discriminatory measures during employment, in particular transfers, downgrading and other steps detrimental to the worker.