Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 349, Marzo 2008

Effect given to the recommendations of the Committee and the Governing Body

1. 223. The Committee last examined this case at its March 2002 session [see 327th Report, paras 101–103]. The case concerns the dismissal of approximately 1,500 leaders and members of the Telefunken Semiconductors Employees’ Union (TSEU) further to their participation in strike action from 14 to 16 September 1995. A first order for the reinstatement of these workers was issued by the Department of Labor and Employment (DOLE) in October 1995. In December 1997 the Supreme Court issued a decision ordering the immediate reinstatement, without exception, of all the TSEU workers concerned. In the light of this development, the Secretary of Labor and Employment issued a Writ of Execution on 26 August 1998 directing the immediate reinstatement of the workers in the company’s payroll in the event that actual or physical reinstatement was impossible. However, on 18 December 2000, the Supreme Court issued a decision declaring the strike illegal and dismissing the request for reinstatement of the workers and the payment of back wages. At the last examination of this case in March 2002, the Committee recalled that an excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of trade union leaders and members dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, fourth edition, 1996, paras 738 and 749]. Expressing its profound regret at the inordinately long delays in carrying out the reinstatement of the workers concerned, the Committee insisted that every effort be made to ensure that all these workers be reinstated in their functions or, if reinstatement is no longer a feasible solution, due to the long period since the dismissal, that they be paid full compensation in this regard.
2. 224. In a communication dated 18 March 2007, the TSEU indicates that, 11 and a half years later, the workers are still fighting their case before the courts. The management refused to implement the Supreme Court decision of 12 December 1997 and the relevant Writ of Execution of the Secretary of Labor, through successive appeals which led to the declaration of the strike as illegal – a ruling which devastated the workers. They continued the action for the payment of retirement benefits. The complainant describes the various stages of the judicial proceedings, which had lasted for four and a half years at the time of the communication (March 2007). The issue is still not resolved and is currently pending before the Court of Appeals 16th Division. The complainants explain that they are entitled to the retirement plan which was included in their collective bargaining agreement and had already reached the requisite age length of service even prior to the strike of 14 September 1995 which led to their dismissal. The complainant pleads for the payment of the retirement benefits to the workers.
3. 225. In a communication dated 8 January 2008, the Government indicates that: (1) the issue of payment of retirement benefits does not relate to the principles of freedom of association and/or collective bargaining; and (2) the matter is pending with the courts and may not therefore be ripe for the Committee’s consideration. The Government therefore considers that the Committee should deny an examination of this communication.
4. 226. The Committee recalls that during the last examination of this case it insisted that every effort be made to ensure that all the 1,500 workers be reinstated in their functions or, if reinstatement was no longer a feasible solution, due to the long period since the dismissal, that they be paid full compensation in this regard. The Committee observes from the absence of relevant information in the communications of the parties that nothing was done in this regard. The Committee must therefore express its profound regret at the manifest absence of equity in this case, due to the excessively long period of time over which the issue of reinstatement was pending (five years), the final decision which reversed a series of earlier rulings in favour of the workers, including from the Supreme Court, and the particularly large number of workers dismissed (some 1,500).
5. 227. The Committee observes that now the workers in question try to obtain, through judicial proceedings, the payment of retirement benefits to which they are, in their view, entitled as they had already reached the requisite length of service before their dismissal. The issue has been pending before the courts for five and a half years. The Committee observes, moreover, that judicial proceedings may continue even further, as the issue is at the moment before the Court of Appeals. The Committee also considers that the issue is linked to freedom of association to the extent that these workers are denied their retirement benefits as a result of their dismissal pursuant to the strike staged in September 1995. In these circumstances, the Committee requests the Government to intercede with the parties with a view to reaching without further delay, a settlement for the payment of retirement benefits to the dismissed workers. The Committee requests to be kept informed of steps taken in this regard as well as any other developments in this case, including judicial decisions rendered.