Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 95, 1967

1. 55. The Committee, having already submitted interim reports on this case to the Governing Body at its meetings in February 1963, May 1963, June 1964, February 1965, and November 1965, continued its examination of the case at its meeting in May 1966, when it submitted to the Governing Body a further interim report on those aspects of the case which were still outstanding in paragraphs 143 to 165 of its 90th Report, which was approved by the Governing Body on 27 May 1966, in the course of its 165th Session. That report contained requests, on the part both of the Committee and of the Governing Body, to furnish further information on certain aspects of the case, which were brought to the notice of the Government of the United Kingdom by a letter dated 3 June 1966. The Government furnished further information in a communication dated 26 October 1966.
2. 56. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), 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), and has declared them to be applicable without modification to Aden.

Allegations relating to the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, and to the Application of the Penal Provisions of the Ordinance

1. 57. The allegations made in 1962 with respect to the provisions of the ordinance relating to compulsory arbitration and restriction of strikes were analysed in paragraphs 101 to 111 of the 68th Report of the Committee. The complainants at that time acknowledged that the provisions of the ordinance in general had already been found by the Committee, in Case No. 221 relating to Aden, not to be incompatible with I.L.O standards concerning trade union rights, but contended that the experience of the two years following the enactment of the ordinance had shown that in practice trade union rights had been impeded and the principle of free collective bargaining had been infringed in Aden.
2. 58. When the Committee considered this aspect of the allegations at its meeting in February 1963, it also had before it the observations furnished by the Government of the United Kingdom by a communication dated 29 October 1962, in which statistics were furnished with a view to showing that not only had the ordinance greatly reduced the number of man-days lost through strikes but that it had also been an incentive to trade unions and employers to negotiate voluntary agreements.
3. 59. On the same occasion the Committee had before it a number of cases cited by the complainants in support of their argument that the penalties for offences in connection with strikes prescribed by the ordinance were unduly severe and that measures of coercion had replaced free collective bargaining. Mr. Murshed, General Secretary of the General and Technical Workers' Union, was said to have been sentenced to 27 months' rigorous imprisonment (reduced by six months on appeal) on charges of incitement to strike and sedition. In January 1962, it was alleged, Mr. Obeid, President of the Refinery Employees' Union, was sentenced to four months' imprisonment and ten members of the union executive committee were sentenced to six weeks' imprisonment for having called a trade union meeting in working hours. At the end of January 1962, said the complainants, the Forces Local Employees' Union contemplated strike action because it could not secure a satisfactory agreement, and appointed a five-man emergency committee; before the strike was called, however, they were sentenced to one year's detention for refusing to enter into a bond to abide by the ordinance; when the union called a 24-hour strike on 11 April 1962, Mr. Aswadi, the Assistant General Secretary of the Aden Trades Union Congress, and Mr. Latif, the President of the union, were sentenced to four months' imprisonment; when another strike was called on 9 and 10 May 1962, 30 strikers were fined. The complainants referred also to the sentencing of Mr. Al Asnag, General Secretary of the Aden T.U.C, and Mr. Hambala, but, as the Committee subsequently made its recommendations to the Governing Body on this particular case in paragraph 105 (a) of its 81st Report, it is not dealt with further in the present report. As regards the other cases mentioned above, the Government stated that the prosecutions had been instituted under section 24 of the ordinance.
4. 60. On these particular issues the Committee observed 9 that it had in fact, in Case No. 221 relating to Aden, reached the conclusion that the provisions of the ordinance restricting strikes and instituting a system of arbitration were not incompatible with Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The only reservation made in the earlier case had been with respect to the position of the Crown in connection with arbitration, an issue which had not been raised in the present case. The Committee therefore considered that there was no occasion for it to re-open the legal aspects of the case. As regards the contention that in practice the intent of Article 4 of the said Convention No. 98 had been defeated, the Committee observed that it was not clear from the evidence whether the reduction of work stoppages since the enactment of the ordinance had been due to a greater tendency towards free collective bargaining or to the fact that restrictions placed on strikes had led to the settlement of disputes by compulsory means, a question on which divergent views were held and on which the Committee considered it would be extremely difficult to express a firm view on the evidence available to it.
5. 61. When it examined the foregoing matters at its meeting in February 1963 the Committee preferred to defer making its recommendations to the Governing Body, as it had been informed by the Government of the United Kingdom that a Joint Industrial Council was being set up in Aden to advise the Minister of Labour with regard, inter alia, to a review of the Industrial Relations Ordinance e The Committee therefore requested the Government to keep it informed of developments in this connection.
6. 62. At its meeting in May 1963 the Committee had before it further allegations regarding the application of the penal provisions of the ordinance. According to W.F.T.U a demonstration on 24 September 1962 and a general strike on 19 November 1962, partly in support of economic demands and partly in protest against " the proposed incorporation of Aden in a Federation of Southern Arabia ", led to over 100 arrests, and after a strike called by the Forces Local Employees' Union on 22 October 1962 in protest against dismissals and refusals to meet claims, 165 strikers were arrested and 102 of them deported; according to the Aden T.U.C over 400 persons were deported. I.C.F.T.U, in a communication dated 26 March 1963, referred to fines, sentences of imprisonment, deportations and dismissals following the strike of 19 November 1962.
7. 63. In communications dated 28 March and 18 April 1963 the Government commented on certain of the cases referred to in paragraphs 59 and 62 above.
8. 64. Regarding the case of Mr. Aswadi and Mr. Latif (paragraph 59 above), the Government stated that sentences of three months' imprisonment were passed after the strike illegally called on 11 April 1962 while negotiations were taking place, and that the magistrate had said that they dishonestly withheld from their members information as to concessions made by the employers. According to the Government the motive for the strike was political, to challenge the ordinance and to coerce the Government of Aden. Following the strike of 9 and 10 May 1962 (paragraph 59 above) 30 persons were charged (not arrested, as alleged), 23 of them being fined.
9. 65. The strike of 22 October 1962 (paragraph 62 above) was called by the Forces Local Employees' Union, while negotiations in a dispute were pending, because H.M. Forces refused to go to arbitration on two of six issues involved, the conciliator having said that arbitration was premature, in view of the concessions offered and the prospects of a settlement; 90 persons, who had no right to reside in Aden, said the Government, were deported as undesirables.
10. 66. According to the Government the general strike of 19 November 1962 (see paragraph 62 above) was purely political, as shown by the Aden T.U.C complaint itself.
11. 67. The Committee again adjourned its examination as it was awaiting information as to further developments with regard to the work of the Aden Joint Industrial Council.
12. 68. At its meeting in June 1964 the Committee took note of information from the Government to the effect that the Aden Joint Industrial Council had begun its work, and also noted that the Government of the United Kingdom had reported to the I.L.O. Committee of Experts on the Application of Conventions and Recommendations that " urgent consideration was being given to the repeal of the ordinance and its replacement by new legislation ".
13. 69. At the same time the Committee had before it further information concerning cases arising out of the application of the penal provisions of the ordinance.
14. 70. As regards the deportations following the strike of 22 October 1962 (see paragraph 62 above) the Government stated, in a communication dated 11 November 1963, that 54 persons were deported to Yemen, 26 to the Aden Protectorate and ten to Somalia, pursuant to orders made under the Vagrants and Undesirables Ordinance.
15. 71. As regards the case of Mr. Obeid and ten members of the Refinery Workers' Union, who called a union meeting during working hours (see paragraph 59 above), the Government stated that the sentences were passed because those concerned had left the power station plant undermanned, with grave risk to life and property, and had also acted in breach of the agreed disputes procedure. Mr. Obeid was sentenced to four months' imprisonment for procuring a strike contrary to section 24 (3) of the Industrial Relations Ordinance, and the ten others to six weeks' imprisonment for taking part in an illegal strike contrary to section 24 (1) of the ordinance.
16. 72. As regards the case of the five-man emergency committee of the Forces Local Employees' Union, the Government stated that the persons concerned had issued leaflets inciting a strike in contravention of the Industrial Relations Ordinance. They were summoned on 28 February 1962 under section 74 of the Criminal Procedure Ordinance and were committed under section 77 thereof for refusing to sign a bond to be of good behaviour and keep the peace for 12 months. In August 1962 the Supreme Court allowed their appeal on the ground that the situation had changed and the bond was no longer needed.
17. 73. The Government gave the following details on the case of Mr. Murshed, General Secretary of the General and Technical Workers' Union (see paragraph 59 above). He was charged with sedition under section 124 A of the Penal Code, on the basis of a speech made at the Aden T.U.C premises on 24 October 1961, and sentenced to 18 months' rigorous imprisonment, reduced to 12 months by the Nairobi Court of Appeal. On three charges of contravention of section 24 (3) of the Industrial Relations Ordinance he was sentenced to a total of six months' imprisonment.
18. 74. At the same meeting in June 1964 the Committee considered further allegations relating to deportations of strikers. In a communication dated 13 June 1963 the Aden T.U.C declared that, through the application of section 24 (1) of the ordinance, hundreds of persons had been imprisoned, fined or deported because of a general cessation of work by all persons in the country against the government policy of merging Aden in a Federation." In a communication dated 27 November 1963 the Aden T.U.C alleged that, in connection with a strike of civilian employees of the military forces, 50 workers were arrested, 40 of them being deported. The Arab Federation of Petroleum Workers alleged in a communication dated 12 December 1963 that the Aden Government, in November 1963, arrested and deported without valid reason Mr. Ali Naser Obahi and Mr. Mohammed Ahmed Hammadi, executive members of the Aden Petroleum Workers' Union.
19. 75. As regards the above strike of civilian employees of the Forces in November-December 1963, the Government stated that the authorities had offered to negotiate if the strike was called off. The strike became political. During the strike 34 Forces employees were deported under section 4 (1) (c) of the Vagrants and Undesirables Ordinance, as were 21 other persons not in Forces employment. The said persons did not belong to Aden and were deported on security grounds. Mr. Naser Obahi (his name was given by the Government as Mr. Ali Naser Ubahi Radas) was deported to Yemen; the case of Mr. Hammadi was being investigated.
20. 76. The committee decided once again to adjourn its further examination, and to ask the Government for further information as to developments with regard to the Aden Joint Industrial Council."
21. 77. The case was next considered by the Committee at its meeting in February 1965, when the Committee had before it a communication from the Government dated 9 November 1964 containing further information on the case of Mr. Murshed (see paragraph 73 above) and on the situation with regard to the work of the Aden Joint Industrial Council.
22. 78. The Government furnished a copy of the speech which led to Mr. Murshed being found guilty of sedition. The Committee expressed the view that the essence of the charge upheld by the court appeared to have been founded on his exhortations to contravene the Industrial Relations Ordinance."
23. 79. Secondly, the Government confirmed that the Aden Joint Industrial Council was functioning, with the participation of the Aden T.U.C, and had made recommendations to the Government of Aden concerning possible amendments of the Industrial Relations Ordinance and that the new Aden Government would give early consideration to the matter, taking into account the recommendations of the Joint Industrial Council.
24. 80. The Committee decided to request the Government to keep it informed of further developments.
25. 81. When the Committee met in November 1965, it had before it a communication dated 26 May 1965 in which the Government stated that a Bill to repeal the ordinance and to provide for industrial relations procedure in essential services would shortly be published for presentation to the Aden Legislative Council; the Committee therefore decided to request the Government to inform it of further developments as soon as possible.
26. 82. At its meeting in May 1966 the Committee took note of a communication from the Government dated 10 February 1966, according to which a repealing Bill published in June 1965 had, following criticism by certain trade unions, been withdrawn from the Legislative Council for further consideration by Ministers of the Aden Government shortly before the suspension in September 1965 of the provisions of the Aden Constitution relating to the Council of Ministers and the Legislative Council; consideration was being given by the appropriate authorities to the possibility of proceeding with the legislation without waiting for the resumption of ministerial governments
27. 83. The Government now states, in a communication dated 26 October 1966, that it has been the policy of the Administration, since the partial suspension of the Aden State Constitution, to refrain from enacting legislation that might give rise to controversy, unless the enactment of such legislation is required by overriding considerations of security and public safety. Since the trade unions have not given undivided support to the legislation in question and since the repeal of the ordinance must be accompanied by the enactment of legislation to replace it, the Government regrets that it has not been possible to proceed further. The Aden Government is prepared at all times to discuss the proposed repeal of the ordinance and any other consequential changes in the law that may be required with both trade unions and employers, if they so wish. In the present situation the agreement of trade unions and employers to the enactment of new legislation to govern the conduct of industrial relations in Aden would be an important prerequisite to any legislative changes in this field that the Administration might propose to make.
28. 84. It is inevitable that the Committee should feel a keen disappointment that such a position has been reached. While the Committee has already concluded (see paragraph 57 above) that the provisions of the Industrial Relations Ordinance relating to strikes and arbitration criticised by the complainants in the present case are not actually incompatible with Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), it was unable to reach a conclusion on the disputed issue as to whether the reduction of disputes achieved by the ordinance had been due to a greater tendency towards free collective bargaining or to the fact that the restrictions placed on strikes had led to the settlement of disputes by compulsory means (see paragraph 60 above). In those respects the attitude of the Committee remains unchanged. Having reached the above conclusions, the Committee also cannot go so far as to say that the penal provisions applicable in case of contraventions of the ordinance are contrary to the provisions of the Conventions relating to freedom of association which are applicable in Aden. Having recognised this, the Committee nevertheless feels conscious that all the evidence points to the existence of an extremely strained atmosphere in industrial relations and that, while the workers' organisations in Aden have on several occasions called strikes purely or mainly for political purposes, the penal provisions of the ordinance-in themselves already more severe than those generally contained in comparable legislation in many other countries-may have been applied far more rigidly than might have been wise even in the case of strikes called on economic grounds when the workers felt that their efforts to achieve a settlement by negotiation were leading nowhere. Thus the Committee expressed the opinion, in paragraph 157 of its 76th Report, that the strikes of 22 October 1962, October 1963 and November-December 1963, all of which gave rise to large-scale prosecutions, were apparently called in support of economic demands, although in contravention of the ordinance. Whatever the merits of the conflicting arguments may be, it seems evident, even after making due allowance for the effects of the tense political situation, that the operation of the ordinance has caused widespread dissatisfaction among the trade unions in Aden to an extent hardly conducive to the development of harmonious industrial relations and has given rise to a general demand on their part for the repeal or amendment of the ordinance. That the ordinance was in some ways unsatisfactory appears to have been realised by the governmental authorities themselves; it is to be noted in this connection that the Government has informed the I.L.O. Committee of Experts on the Application of Conventions and Recommendations that " urgent consideration was being given to the repeal of the ordinance and its replacement by new legislation " (see paragraph 63 above).
29. 85. In these circumstances the Committee recommends the Governing Body:
30. (a) to note with keen regret that, while it was announced by the Government in 1963, following the setting up of the Aden Joint Industrial Council, that urgent consideration was being given to the repeal of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, and to its replacement by new legislation, the Government now states, in its communication dated 26 October 1966, that it has not been possible to proceed further;
31. (b) to note further that, while the provisions of the ordinance relating to the restriction of strikes and arbitration do not appear to be actually incompatible with the Conventions relating to freedom of association which are applicable in Aden, they do not appear to have resulted in the promotion of harmonious industrial relations, a situation which, even having regard to the effects of the disturbed political situation in Aden, may have been also adversely affected by the circumstances in which on some occasions recourse has been had to prosecutions pursuant to the penal provisions of the ordinance;
32. (c) to express the hope that the Government, mindful of the need to improve the atmosphere of industrial relations and having regard to the considerations set forth in paragraph 84 above, will take the initiative in endeavouring to bring the parties together in further consultation with the responsible authorities with a view to considering what legislative amendments may be necessary to remedy the situation;
33. (d) to request the Government to be good enough to inform the Governing Body of further developments in this connection.
34. Allegations relating to the Suppression of a Trade Union Newspaper
35. 86. In paragraphs 150 to 154 of its 90th Report the Committee, at its session in May 1966, examined further the allegations relating to the suppression of the Aden T.U.C newspaper, Al Ommal. The Committee then had before it a letter dated 10 February 1966 from the Government of the United Kingdom stating that, following the partial suspension of the Aden Constitution in September 1965, government policy changes and new legislation had been confined to strictly essential measures and, so far as possible, the policies of previous representative governments were being preserved. The Government declared that the continuing security difficulties for the time being rendered impossible the introduction of measures which the Aden Government might otherwise wish to consider, so that no statement could be made as to measures intended by the Aden Government in relation to this matter, but gave the assurance that the point would be considered further when circumstances permitted.
36. 87. In these circumstances the Committee recommended the Governing Body, in paragraph 165 of its 90th Report:
37. (a) to decide, with regard to the allegations relating to the suppression of a trade union newspaper:
38. (i) to draw the attention of the Government of the United Kingdom once again to the view which it has expressed on several occasions that the right to express opinions through the press or otherwise is clearly one of the essential elements of trade union rights;
39. (ii) to draw the attention of the Government once again to its view that the discretionary power of the public authorities to revoke the licence of a trade union newspaper without this giving rise to any right of appeal to a court of law is not compatible with the right of a trade union organisation to organise its activities without interference on the part of the public authorities pursuant to Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been declared applicable without modification to Aden;
40. (iii) to note the assurance of the Government that the point will be considered further and to request the Government to undertake such reconsideration at the earliest possible date and keep the Governing Body informed.
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42. 88. In its letter dated 26 October 1966 the Government of the United Kingdom states that very careful consideration has been given to the observations of the Committee with regard to the revocation of licences for trade union newspapers, but that it is not possible at this stage to undertake any immediate relaxation of existing restrictions.
43. 89. In these circumstances the Committee recommends the Governing Body:
44. (a) to draw the attention of the Government of the United Kingdom once again to the view which it has expressed on several occasions that the right to express opinions through the press or otherwise is clearly one of the essential elements of trade union rights;
45. (b) to draw the attention of the Government once again to its view that the discretionary power of the public authorities to revoke the licence of a trade union newspaper without this giving rise to any right of appeal to a court of law is not compatible with the right of a trade union organisation to organise its activities without interference on the part of the public authorities pursuant to Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been declared applicable without modification to Aden;
46. (c) to note with regret that the latest reply from the Government appears to hold out no prospect of this incompatibility between the law of Aden and the said Convention being removed;
47. (d) to draw the above conclusions to the notice of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations.
48. Allegations relating to the Aden Teachers' Union
49. 90. When it further considered the allegations relating to the non-recognition of the Aden Teachers' Union at its session in November 1965 the Committee noted that it appeared from the information furnished by the Government that when this registered union sought formal recognition on 6 February 1962 it was asked to supply details of its Constitution and membership by the Education Department of the State of Aden, but did not do so. The Committee observed, however, that the Government had not replied to the specific allegation that recognition had been refused by the Federal Minister of Education because, since the formation of the Federation, education concerned the Federation and not just the State of Aden. The Committee further observed that, in its reports pursuant to article 22 of the I.L.O. Constitution with respect to the application in Aden of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Government had referred to the Aden Teachers' Union as one of the " representative organisations " to which copies of its reports had been circulated. The Committee, therefore, having regard to the obligation assumed by the Government, under Article 3 of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), to ensure that all practical measures shall be taken to assure to trade unions which are representative of the workers concerned the right to conclude collective agreements with employers, decided, as indicated in paragraph 359 of its 85th Report, to request the Government to state whether the Aden Teachers' Union or any other union was now competent to negotiate on behalf of teachers in Aden and also to comment on the allegation that recognition had been refused because education had become a federal matter. When the Committee met in May 1966 it decided, as indicated in paragraph 157 of its 90th Report, to repeat this request, as the Government had not furnished the information in question.
50. 91. Also at its session in May 1966 the Committee had before it a complaint dated 2 December 1965 from the World Federation of Trade Unions to the effect that the registration of the union had been arbitrarily cancelled. The Government denied this, in its communication dated 10 February 1966, and stated that, after there had been evidence of breaches of its rules, the Registrar of Trade Unions had warned the union that it was in danger of deregistration " if it did not put its affairs in order ".
51. 92. Now, in its communication dated 26 October 1966, the Government states that the registration of the Aden Teachers' Union was cancelled on 5 April 1966 and that no other union has so far emerged competent to negotiate on behalf of teachers in Aden. There is no justification, adds the Government, for the suggestion that recognition of the Aden Teachers' Union was refused because education is a federal matter.
52. 93. It would appear therefore that no organisation representing teachers at present exists in Aden. In this connection the Committee wishes to draw attention to the obligations assumed by the Government under Article 3 of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), cited in paragraph 90 above, under Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), according to which workers' organisations shall have the right to organise their activities and to formulate their programmes, under Article 10 of the same Convention, according to which such organisations are defined as organisations for furthering and defending the interests of workers, and under Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), according to which measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.
53. 94. In these circumstances the Committee recommends the Governing Body:
54. (a) to note that the registration of the Aden Teachers' Union was cancelled by the Registrar of Trade Unions on 5 April 1966 and that there is at present no other union competent to negotiate on behalf of teachers in Aden;
55. (b) to draw the attention of the Government to the obligation it has assumed under Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), according to which measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.
56. Allegations relating to the Employment (Registration and Control of Employment) Bill
57. 95. These allegations were dealt with in detail by the Committee in paragraphs 183 to 196 of its 76th Report and paragraphs 101 to 104 of its 81st Report, when the Committee drew the attention of the Government, having regard to certain of the provisions of the Bill, to the guarantees and principles embodied in Articles 1 and 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and Article 3 of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), both declared applicable without modification to Aden. The Committee also noted that it appeared from the text of the proposed Bill that, if it were to be enacted in that form, access to employment in general and to particular employment would depend on a worker's being registered and that a wide discretion would be accorded to the registering authority when deciding to grant or refuse registration. The Committee pointed out, in paragraph 194 of its 76th Report, that it had drawn attention in the past to the fact that such provisions might tend to prevent the negotiation by collective agreement of better terms and conditions, including terms and conditions governing access to particular employments, and thereby to infringe the rights of the workers concerned to bargain collectively and to promote and improve their working conditions which were generally regarded as essential elements of freedom of association.
58. 96. At its meeting in May 1966 the Committee had before it a communication dated 10 February 1966 from the Government, in which it repeated earlier statements that the Bill remained in abeyance.
59. 97. The Committee, therefore, in paragraph 164 of its 90th Report, requested the Government to be good enough to inform it in due course of any further developments in connection with the Bill.
60. 98. In its communication dated 26 October 1966 the Government states that the Employment (Registration and Control of Employment) Bill still remains in abeyance, and the Committee therefore recommends the Governing Body to request the Government to be good enough to inform it in due course of any further developments in this connection.