Informe provisional - Informe núm. 25, 1957

A. A. The complainants' allegations

1. 179. The complaints are contained in communications from the Miners' Trade Unions International (W.F.T.U) dated 19 September 1956, from the World Federation of Trade Unions dated 25 October and 7 November 1956, and from the Northern Rhodesia Trade Union Congress, an affiliate of the International Confederation of Free Trade Unions, dated 16 October and 23 November 1956. As the complaints relate to the same matters they are analysed together.
2. 180. The allegations fall under two main heads : (a) allegations relating to the state of emergency and measures taken pursuant to it ; (b) allegations relating to the Trade Unions and Trade Disputes (Amendment) Ordinance, 1956.
   • Allegations relating to the State of Emergency in Northern Rhodesia
3. 181. It alleged that a state of emergency was declared in response to a strike by African workers in the copper mines, although the strike was lawful, and that the policy of general repression is all the more offensive because one of the miners' principal aims is the abolition of the racial discrimination to which they are subjected. The state of emergency is alleged to have restricted considerably, if it has not paralysed completely, the functioning not only of the African Mineworkers' Union but also of the Northern Rhodesian trade union organisations as a whole.
4. 182. Various measures are alleged to have been taken since the proclamation of the state of emergency. These allegations are analysed below.
   • Allegations relating to Arrests or Restrictions on the Movements of Trade Union Leaders
5. 183. It is alleged by the Miners' Trade Unions International, in its complaint dated 19 September 1956, that on 13 September 1956 the Government, utilising its exceptional powers during a state of emergency, arrested 32 Africans, mainly leaders of the African Mineworkers' Union, and including Mr. Nkoloma, the General Secretary of that organisation, and that on 15 September another nine persons were arrested. According to the complaint presented on 16 October 1956 by the Northern Rhodesia Trade Union Congress, 75 leaders of the African Mineworkers' Union have been arrested and it has been bereft of its elected leaders. This complainant alleges that the Government has deprived this union of its leaders in a deliberate attempt to destroy it and to support the mining companies and that the " imprisonment of almost all well-known trade union leaders " is disrupting the trade union movement. In its further communication dated 23 November 1956 the Northern Rhodesia Trade Union Congress gives the names of 28 of the trade union leaders alleged to be detained at a point 200 miles from the mining territory where their union existed ; they include eight persons who are also officials of the complaining organisation.
   • Allegations relating to the Prohibition of Meetings
6. 184. It is alleged by the Miners' Trade Unions International that the Government has prohibited meetings of more than five persons, this prohibition applying also to trade union meetings. The Northern Rhodesia Trade Union Congress declares that trade union meetings are not permitted. It is contended that it has become impossible for the officials of the African Mineworkers' Union who are still at liberty to collect union contributions.
   • Allegation relating to an Order to Resume Work
7. 185. It is alleged that, although their strike was lawful, the miners were ordered to return to work.
   • Allegations relating to Police and Army Measures against the Workers
8. 186. It is alleged that batons and tear gas have been used against the African workers, that the police have fired on them, that police reinforcements, riot squads and, according to some reports, troops have been brought from Southern Rhodesia and Nyasaland to be used against the workers and that police are patrolling the mine compounds.
   • Allegations relating to Government Interference in the Administration of the African Mineworkers' Union
9. 187. According to the Northern Rhodesia Trade Union Congress the Government has virtually taken over the African Mineworkers' Union and has appointed people to run it. The complainant alleges that the Labour Department has taken over the administration of the union and has unconstitutionally appointed officials and the Supreme Council of the union, and that an officer of the Labour Department is empowered to attend sessions of the Supreme Council although he is not a member of the union. The signatory of the complaint, the President of the complaining organisation, declares that he was told that " the Government wants to do away with extreme leadership and build up moderates ".
   • Allegations relating to a Press Censorship
10. 188. It is alleged that a press censorship has been imposed.
    • Allegations relating to the Trade Unions and Trade Disputes (Amendment) Ordinance, 1956
11. 189. The Trade Unions and Trade Disputes (Amendment) Ordinance, 1956, forms the subject of the complaint presented by the World Federation of Trade Unions on 7 November 1956. A number of provisions in the draft Ordinance, an alleged copy of which is attached to the complaint, are criticised by the complainant. The different allegations are analysed below.
    • Allegations relating to Compulsory Registration of Trade Unions
12. 190. It is alleged that sections 2 and 3 of the Ordinance provide for the compulsory registration of trade unions and that the Registrar may refuse or cancel registration, so that the existence of a trade union would depend on his decision. The complainant states that, while cancellation of registration under the previous legislation merely entailed loss of the privileges of a registered union, cancellation under the Ordinance, unless appeal therefrom to the High Court should succeed, would oblige a union to cease to carry on all activities and be dissolved.
    • Allegations relating to Registration of Trade Union Offices
13. 191. It is alleged that the Ordinance provides that if a trade union should function for 30 days without having a registered office, its officers would be liable to a fine of £5 for every day during which the union so operated, whereas a total of £5 was the maximum fine for the offence prescribed under the previous legislation.
    • Allegations relating to the Registrar's Powers of Inspection and Control of Assets of Trade Unions
14. 192. The complainant alleges that all records of financial transactions must be available for inspection at the registered office of a trade union, and that the Registrar has the right to inspect the accounts of a union, including cash in hand, and to hold an inquiry, this, in the view of the complainant, constituting a serious interference in trade union activities. The complainant alleges further that, whereas under the previous legislation the trustees of a trade union could sue its treasurer if he refused on demand to hand over the union funds and property, the Ordinance permits the Registrar, as well as the trustees, to sue in such circumstances, this being a violation of the principle that a trade union is free to manage its own affairs. Finally, it is alleged, the Registrar has special powers with respect to the assets of a union which is in process of being dissolved.
    • Allegations relating to Picketing
15. 193. The complainant declares that section 10 of the Ordinance would severely restrict, if not abolish, the right to picket in connection with a strike.
    • ANALYSIS OF THE REPLY
16. 194. The Government of the United Kingdom presented its observations in a communication dated 28 January 1957, to which it attached a statement of the Acting Chief Secretary on the state of emergency and an extract from the report of the Commission appointed to inquire into the unrest in the mining industry in Northern Rhodesia between May and September 1956, the Chairman of which was Sir Patrick Branigan, Q.C. The Government indicated that these documents should be incorporated with its reply.
    • Allegations relating to the State of Emergency in Northern Rhodesia
17. 195. The Government's explanation as to the background events and general reasons for proclaiming a state of emergency is contained in the two documents attached to its reply as mentioned in paragraph 194.
18. 196. The following points are made in the aforesaid Commission's report with respect to the reasons for unrest in the mining industry in Northern Rhodesia. It is contended that the cause of the unrest between May and September 1956 was the " irresponsible opposition " of the African Mineworkers' Union to the recognition by the mining companies of the Mines' African Staff Association as an organisation representing certain categories of the companies' African employees. The report declares that the attitude of the African Mineworkers' Union was irresponsible because:
    • (a) the Union from May 1956 onwards showed their determination to prevent the Companies from implementing their recent agreements with the Mines' African Staff Association and the Union by resorting to strike action, boycotts of mine welfare services and medical centres, the banning of overtime and wholesale stoppages of work-measures apparently aimed at achieving industrial chaos ;
    • (b) the Union, in furtherance of this aim, used the wearing of leg-guards and the posting of identity discs by African underground employees--matters eminently suited for settlement by negotiation and consultation with the Companies-as a pretext for organising stoppages of work involving approximately 75 per cent of African underground employees and a large number of African surface workers;
    • (c) the Companies' recognition of the Mines' African Staff Association had been the subject of lengthy negotiations with the African Union in 1955 and we are satisfied that the Union leaders had been fully apprised by the Companies during these negotiations of what the effect of such recognition would be, not only with regard to the division between the Union and the Association of African jobs existing at that time but also to the jobs which were shortly to be released by the European Mine Workers' Union for African advancement ; following these negotiations the Union entered into an agreement with the Companies on 11 October 1955, thereby accepting the Companies' recognition of the Mines' African Staff Association and the Association's field of representation of African jobs ;
    • (d) in all the strikes staged as protest against the introduction of monthly pay for certain African employees, and therefore, ultimately, against the implementation of the October 1955 agreement with the Union and the Companies' recognition agreement with the African Staff Association, the Union leaders both at headquarters and at branch level persistently disregarded the negotiating procedure laid down in the Union agreement with the Companies and the provisions of the Union's own Constitution ;
    • (e) from the evidence relating to the five meetings held between 10 and 25 July 1956, and from the minutes of these meetings, we are satisfied that the Union representatives maintained throughout an uncompromising attitude towards the agreement of 11 October 1955 between their Union and the Companies. They appeared to insist that, notwithstanding that agreement and the recognition agreement with the African Staff Association, certain staff and supervisory employees should continue to be represented by the Union. They made no real effort to examine the criteria formulated by the Companies for the division of African jobs into ticket-paid and staff jobs. The Union leaders' purpose, as expressed in the minutes of the meetings, appeared to be either to disregard the terms of the October 1955 agreement or to have it so amended as to enable the Union to represent African employees in the staff categories who were members of their Union ; the effect of this would be to nullify the recognition of the African Staff Association by the Companies.
19. 197. On 12 September 1956 the Acting Chief Secretary issued a statement concerning the state of emergency proclaimed in the Western Province of Northern Rhodesia on 11 September 1956. He declared that, on 17 June 1956, 7,000 African mineworkers struck in protest against the recognition of the Mines' African Staff Association as the body representing certain categories of employees ; this was the first of a " planned series of sudden short-term nuisance strikes ", followed in the next three months by more than 16 such strikes, some confined to one or two mines and some affecting the whole copperbelt and spreading beyond it. On 11 June 1956 the Government announced that a Commission of Inquiry would be set up and, on 7 September, published its terms of reference. Nevertheless, he stated, the leaders of the African Mineworkers' Union continued to act in an irresponsible manner, denounced the Commission and said that it would have nothing to do with it. The Acting Chief Secretary declared that the union leaders called a ban on overtime and Sunday work and instructed their members to present themselves for work underground without wearing protective leggings and to refuse to post identity discs, although both these requirements are authorised under the Mining Regulations and are essential in the interests of the safety of the workers ; these instructions were given in the certain knowledge that those who obeyed would not be allowed to go underground and, therefore, resulted in thousands of workers being kept from work. He said that the union leaders also indicated that, if the workers were not allowed to go underground without protective leggings and without posting identity discs, a general strike would soon be called and threats were made that in that event essential services would be disrupted.
20. 198. The Acting Chief Secretary claimed that the actions of the African leaders had been designed to inflame public opinion and had already led to breaches of the peace and that their intention had been to cause the situation to deteriorate, as, in fact, it had done ; these actions, he stated, were jeopardising not only the safety and well-being of all those employed in the mining industry but also the security of the copperbelt area and the economy of the whole country.
21. 199. He denied that the Government had any intention of preventing the African Mineworkers' Union from carrying out its proper functions on behalf of its members and stated that the latter would have every assistance and encouragement from the Labour Department in any measures they might take " to set their house in order ".
22. 200. He explained that, in a state of emergency, the Governor had power to make orders concerning the control of persons, property, places, arms and ammunition, transport and communications, publications and for the maintenance of supplies and services. Certain orders, including orders of detention and orders prohibiting meetings, had already been made. Nevertheless, he stated, quoting from the Emergency Powers Regulation, " the ordinary avocations of life and the enjoyment of property shall be interfered with as little as may be permitted by the exigencies of the measures required to be taken for securing public safety, the maintenance of public order and the maintenance of supplies and services essential to the life of the community ".
23. 201. In its observations the Government declares that all the measures taken under the Emergency Powers Regulations, 1956, were security measures necessary for the restoration and preservation of public order and denies that these powers were taken and used for the purpose of ending a lawful strike directed to the suppression of racial discrimination or that the Government has made an attack on trade unionism or acted in support of the mining companies and to destroy the African Mineworkers' Union. The union, declares the Government, continued to perform all its legitimate functions, although some of the emergency measures have inconvenienced trade unionists within the emergency area in common with all other members of the public having business in that area.
    • Allegations relating to Arrests or Restrictions on the Movements of Trade Union Leaders
24. 202. The Government states that 50 members or employees of the African Mineworkers' Union were arrested and detained ; six of them have been released altogether and 44 are still subject to orders restricting their areas of residence to varying degrees, but, in all cases, prohibiting entry into the copperbelt ; restriction orders have been issued against another nine members of the union. The Government denies that these measures were intended to help the mining companies or to destroy the union.
    • Allegations relating to the Prohibition of Meetings
25. 203. The Government states that meetings of more than five persons have been prohibited. It denies that this has prevented the collection of union dues. The Government declares that the President of the African Mineworkers' Union was able to call a meeting of the Supreme Council of the union within 15 days of the proclamation of the emergency and that it continued to perform all its legitimate functions.
    • Allegation relating to an Order to Resume Work
26. 204. It is specifically denied that the Government issued orders to the workers to resume work.
    • Allegations relating to Police and Army Measures against the Workers
27. 205. The Government states that police reinforcements, riot squads and troops were introduced into the emergency areas as a precaution but that the troops were not used. On several occasions, but notably in Ndola, which is not one of the mining townships, batons and tear gas were used to the minimum extent necessary to disperse illegal assemblies ; on one occasion shots were fired.
    • Allegations relating to Government Interference in the Administration of the African Mineworkers' Union
28. 206. The Government denies that it took over the union concerned and ran it through government appointees, stating that only the Supreme Council of the union has appointed officials, that no official or member of the Supreme Council has been appointed by the Government and that no government officer has been present when such appointments have been made. The only occasion when a Labour Department officer attended a meeting of the Supreme Council of the union, states the Government, was on 26 September 1956, when the Acting Labour Commissioner, by invitation, addressed the Supreme Council to explain the effect of action taken under Emergency Regulations, after which the Supreme Council met in private, in accordance with normal practice. No government officer is empowered to attend any union meetings. Labour Department officers are very occasionally invited to attend union meetings for specific purposes, such as to explain legal points or to give talks on matters of general interest.
    • Allegations relating to a Press Censorship
29. 207. The Government states that a press censorship was imposed for a matter of days in order to prevent the circulation of alarming rumours.
    • Allegations relating to the Trade Unions and Trade Disputes (Amendment) Ordinance, 1956
30. 208. This Ordinance, referred to by the complainants as a draft, was, in fact, assented to on 18 September 1956. The Government points out that the measure had passed through all its stages in the Legislative Council by 24 August 1956 and is not an enactment made under Emergency Powers.
    • Allegations relating to Compulsory Registration of Trade Unions
31. 209. The Government declares that the provisions concerning registration of trade unions, as well as those relating to financial matters, have been found necessary to prevent abuses and to protect members against possible malpractices by union officials and do not interfere with the functioning of trade unions. The Government states that under section 8 of the principal Ordinance the Registrar is bound to register a trade union on application if he is satisfied that the trade union has complied with the regulations respecting registry and that the rules of the union provide for the matters enumerated in section 9 of the principal Ordinance, unless, in his opinion, having regard to the Constitution of the union, the principal objects of the union are not statutory objects or the union is unable to implement any of the provisions contained in its rules. Under section 11 of the principal Ordinance, any person aggrieved by the Registrar's refusal to register a combination as a trade union or by the cancellation or withdrawal of a certificate of registration may appeal to the High Court.
    • Allegations relating to Registration of Trade Union Offices
32. 210. The Government does not refer specifically to this matter.
    • Allegations relating to the Registrar's Powers of Inspection and Control of Assets of Trade Unions
33. 211. The Government does not deal with the separate points raised in these allegations, simply stating that the provisions in the Ordinance dealing with financial matters, like those dealing with registration, have been found necessary to prevent abuses and to protect members of a union against possible malpractices by its officials, and that they do not interfere with the functioning of trade unions.
    • Allegations relating to Picketing
34. 212. The Government denies that section 10 of the amending Ordinance abolishes or restricts the right to picket in connection with a strike, stating that the new provisions explain the limits of the right to picket as it appears in the principal Ordinance. Section 25 (2) prevents picketing in an intimidatory manner and was designed to restrain a union from picketing in excess of the right to picket peacefully which it otherwise enjoys under section 25 (1). Finally, declares the Government, section 25 (4) ensures that a worker will not be watched and beset at his place of residence.

213. The Government of the United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947, and according to a declaration communicated by the Government of the United Kingdom its provisions are applicable in Northern Rhodesia.

1. Allegations relating to the State of Emergency in Northern Rhodesia
2. 214. It is alleged that the state of emergency was proclaimed in reply to a lawful strike in the copper mines, one of the miners' proposed aims being the abolition of the racial discrimination to which, it is claimed, they are subjected, and that it has restricted considerably, if not paralysed, the functioning of the African Mineworkers' Union and of the Northern Rhodesian trade unions generally. The Government denies that the Emergency Powers were taken and used " for the purpose of ending a lawful strike directed to the suppression of racial discrimination ". The reasons for the proclamation of a state of emergency are set forth at length by the Government and may be summarised as follows. In June 1956 there was a strike on the issue of union recognition with respect to certain categories of employees, followed by what the Government describes as a series of nuisance strikes, by a ban on overtime and Sunday work and by union members presenting themselves for work underground without wearing protective leggings and without posting identity discs-a manoeuvre tantamount to a refusal to work, in the view of the Government, because men could not be allowed to work underground in those circumstances. The Government adds that threats were made that a general strike would be called and that this strike would disrupt essential services. While the Government states that there had been breaches of the peace, the final reason for proclaiming a state of emergency would appear to have been the fact that the situation so deteriorated as a result of the strikes and other action by the miners' leaders referred to above as to jeopardise, in the Government's view, the safety and well-being of the mining area and of those who worked there and the economy of the country as a whole.
3. 215. The Government contends that the strikes were wrongful in that they were strikes in breach of an agreement concerning union recognition signed by the mining companies and the African Mineworkers' Union on 11 October 1955, a contention supported by the findings of a Commission of Inquiry. It contends also that the other measures taken by the union leaders were intended to prevent implementation of the agreement and to achieve industrial chaos in the process. Finally, states the Government, the union leaders continued to follow the same course of action after a Commission of Inquiry was appointed, and refused to co-operate in the inquiry.
4. 216. The Committee notes, therefore, that an independent Commission of Inquiry, presided over by Sir Patrick Branigan, Q.C, formerly Minister of Justice of the Gold Coast and presently a member of the United Kingdom Industrial Disputes Tribunal, has investigated the events which led to the present situation in Northern Rhodesia, and that the real issue out of which this situation arose appears to have been a dispute concerning the respective jurisdiction of two trade unions, the consequence of which was a chain of events which led finally to the proclamation of a state of emergency. In conformity with its practice in the past, the Committee considers it inappropriate to examine the merits of a jurisdictional conflict between unions, even more so when a matter of this kind has been the subject of examination and report by an independent commission of inquiry.
5. 217. In certain previous cases the Committee reached the conclusion that the question of a state of siege or emergency in itself presented a purely political aspect on which it was not tailed upon to express an opinion but that it should examine its effect solely from the aspect of freedom of association and trade union rights. In the present case, the Committee considers that it is not in a position to express an opinion on the justification or otherwise for the state of emergency as such, as this would involve a knowledge and appreciation of local facts and considerations bearing on the situation which it does not possess, but that it should consider whether or not the action taken by the Government as the result of that situation involved interference with trade union rights. In a number of previous cases the Committee has pointed out that in most countries strikes are recognised as a legitimate weapon of trade unions in furtherance of their members' interest so long as they are exercised peacefully and with due regard to temporary restrictions placed thereon (for example, cessation of strikes during conciliation and arbitration procedures, refraining from strikes in breach of collective agreements, restrictions in the case of essential services until existing means of negotiation, conciliation or arbitration have been exhausted). In Case No. 56 relating to Uruguay the Committee expressed the hope that governments, desiring to see labour relations develop in an atmosphere of mutual confidence, will have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided for under common law rather than to emergency measures, which involve a danger, by reason of their very nature, of certain restrictions being placed on fundamental rights. Subject to the foregoing observations, the Committee has concentrated its attention on the specific allegations that the state of emergency involved particular acts of infringement of trade union rights.
6. Allegations relating to Arrests or Restrictions on the Movements of Trade Union Leaders
7. 218. The complainants allege that 75 elected leaders of the African Mineworkers' Union were arrested and that 28 of them, whose names and trade union offices are given, are detained 200 miles from the mining area where their union existed. The Government refers only to 59 persons, stating that six of them have been released and that 53 are subject to orders restricting their residence and preventing their entry into the mining area concerned. The Government describes them as members or employees of the African Mineworkers' Union but does not mention any names or describe any of these persons as trade union officials, so that the position of the 28 union officials named in the complaint is not clear.
8. 219. In previous cases in which it has been alleged that trade union officers or members have been preventively detained, the Committee has expressed the view that measures of preventive detention may involve a serious interference with the exercise of trade union rights which it would seem necessary to justify by the existence of a serious emergency, and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the observance of the rights of man and, especially, of the right of all detained persons to receive a fair trial at the earliest possible moment.
9. 220. The Committee considers that the restriction of a person's movements to a limited area, accompanied by a prohibition of entry into the area in which his trade union operates and in which he normally carries on his trade union functions, is also inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions, and should also be accompanied by adequate judicial safeguards applied within a reasonable period and, especially, by observance of the right of those concerned to receive a fair trial at the earliest possible moment. In these circumstances, the Committee has asked the Director-General to request the Government to furnish information as to what charges have been brought against the persons, including the 28 named as trade union officials in the complaint of the Northern Rhodesia Trade Union Congress, whose movements have been restricted, and as to the judgments given, and also as to when it is intended to bring to trial, and on what charges, those of the persons concerned against whom proceedings may not yet have been taken.
10. Allegations relating to the Prohibition of Meetings
11. 221. The Government agrees that meetings of more than five persons have been prohibited but does not state to what extent the prohibition has actually been applied in the case of trade union meetings. The Government states, however, that the President of the African Mineworkers' Union was able to call a meeting of the Supreme Council of the Union within 15 days of the proclamation of a state of emergency and that it continued to perform all its legitimate functions. It is not stated whether or not the meetings of the Supreme Council required prior authorisation. In the circumstances, the Committee emphasises once again, as it has done in many previous cases, that the freedom of trade union meetings constitutes one of the fundamental elements of trade union rights.
12. Allegation relating to an Order to Resume Work
13. 222. The allegations that strikers were ordered to resume work is categorically denied by the Government. The complainant gives no information as to the date or terms of the alleged order or other details relating to this question. In these circumstances, the Committee considers that no proof has been offered in substantiation of this allegation and therefore recommends the Governing Body to decide that it does not call for further examination.
14. Allegations relating to Police and Army Measures against the Workers
15. 223. It is alleged that batons and tear gas have been used against the African workers, that the police have fired on them and that police reinforcements, riot squads and troops have been brought in. The Government states that these groups of security forces were introduced to the emergency area (but that the troops were not used), that batons and tear gas were used to the minimum extent necessary to disperse illegal assemblies and that shots were fired on one occasion. In a number of previous cases, the Committee has recommended the dismissal of allegations of intervention by security forces when the facts showed that such intervention was limited to the maintenance of public order and did not restrict the legitimate exercise of the right to strike ; at the same time, the Committee implied in those cases that it would have regarded the use of police for strikebreaking purposes as an infringement of a trade union right. The Committee considers that, before it formulates its final recommendations on this aspect of the case, it should request the Government to furnish more detailed information concerning the nature and purpose of the demonstrations which were regarded as illegal assemblies and the actual circumstances in which batons and tear gas were used and shots were fired.
16. Allegations relating to Government Interference in the Administration of the African Mineworkers' Union
17. 224. It is alleged that the Government has virtually taken over the union in question and appointed officials and members of the union's Supreme Council and that an officer of the Labour Department is empowered to attend meetings of the Supreme Council. The Government specifically denies running the union, appointing officers or appointing members of the Supreme Council and declares that no government officer has power to attend meetings, although on very rare occasions a Labour Department officer has attended union meetings to explain legal or other questions when specifically invited to do so by the union. Having regard to the absence of any precise allegations by the complainant and to the precise denials and explanations furnished by the Government, the Committee considers that no proof has been offered to show that trade union rights have been infringed in the present case and, therefore, recommends the Governing Body to decide that these allegations do not call for further examination.
18. Allegations relating to a Press Censorship
19. 225. In reply to the allegation that a press censorship has been imposed, the Government states that a press censorship was established for a matter of days in order to prevent the circulation of alarming rumours. The Committee considers that, while the imposition of a general censorship is primarily a matter related to civil liberties rather than to trade union rights, the application of a press censorship during an industrial dispute may have a direct effect on the conduct of the dispute and may prejudice the parties by not allowing the true facts connected with the dispute to become known. The Committee notes the Government's statement that the press censorship was imposed to prevent alarmist rumours at a tense moment in the situation in Northern Rhodesia, but still feels grave doubts as to the desirability of having resort to such censorship in connection with an industrial dispute.
20. Allegations relating to the Trade Unions and Trade Disputes (Amendment) Ordinance, 1956
21. 226. The amending Ordinance was assented to on 18 September 1956. The Government explains that its enactment had no connection with the emergency. The principal Ordinance amended by the Ordinance of 1956 is the Trade Unions and Trade Disputes Ordinance, 1949.
22. Allegations relating to Compulsory Registration of Trade Unions
23. 227. It is alleged that the amendment makes the registration of a trade union compulsory, instead of optional as previously, and that the Registrar may refuse or cancel registration, the fact of not being registered now obliging a union to cease to carry on all activities and to be dissolved instead of merely losing the privileges flowing from registration, as was the case under the principal Ordinance. The Government declares that the new provisions are necessary to prevent abuses and to protect members against possible malpractices by union officials, and refers to the safeguards which it considers to be provided by sections 8, 9 and 11 of the principal Ordinance.
24. 228. Section 6 of the principal Ordinance, which provided for optional registration, is replaced in the amending Ordinance by a new text and a further section inserted as section 6A. Sections 6 and 6A in the amendment read as follows:
25. 6. (1) Every trade union shall be registered in accordance with the provisions of this Ordinance or be dissolved within six months:
26. (a) of the date of its formation ; or
27. (b) of the date of any notification by the Registrar that he has refused under section eight to register the trade union ; or
28. (c) of the first day of April, nineteen hundred and fifty-seven, whichever is the latest date.
29. (2) Every trade union which is not registered or dissolved within the period prescribed in the preceding subsection and every officer thereof shall be liable to a penalty not exceeding five pounds for every day that it remains unregistered after the expiration of such period.
30. (3) This section shall not apply to any trade union registered under the Rhodesia Railways Ordinance, 1949, or any law amending the said Ordinance or substituted therefor.
31. 6A. (1) No trade union shall perform any act in furtherance of the purpose for which it has been formed unless such trade union is registered in accordance with the provisions of this Ordinance.
32. (2) Any trade union or officer thereof who contravenes the provisions of this section shall be liable to a penalty not exceeding twenty-five pounds.
33. (3) This section shall not apply to any trade union registered under the Rhodesia Railways Ordinance, 1949, or any law amending the said Ordinance or substituted therefor.
34. 229. Section 8 (1) of the principal Ordinance, as amended, reads as follows:
35. 8. (1) The Registrar, upon being satisfied that a trade union has complied with the regulations respecting registry in force under this Ordinance, and that the rules of the union provide for the matters enumerated under section nine, shall register such union and its rules, unless, in his opinion, having regard to the Constitution of the union, the principal objects of the union are not statutory objects or the union is unable to implement any of the provisions contained in its rules.
36. 230. Section 9 enumerates the matters which must be provided for in the rules of every trade union which it is proposed to register or which has been registered. These matters include the name and address of the union, its objects, the making and changing of rules, appointment and removal of the board and the officers, investments and audits, dissolution, secrecy of strike ballots, union dues, etc.-all matters normally dealt with in the rules of trade unions in nearly all countries.
37. 231. Subsections (1), (2) and (5) of section 10 of the principal Ordinance, as amended, read as follows:
38. 10. (1) The certificate of registration of a trade union shall be withdrawn or cancelled by the Registrar in the following cases:
39. (a) at the request of the trade union ... ;
40. (b) on proof to his satisfaction that a certificate of registration has been obtained by fraud or mistake or that the registration of a trade union has become void under subsection (6) of section eight or that such trade union has wilfully and after notice from the Registrar violated any of the provisions of this Ordinance, or has ceased to exist.
41. (2) The Registrar may withdraw the certificate of registration of a trade union if the Constitution of the union has been altered in such a manner that, in his opinion, the principal objects of the union are no longer statutory objects, or if, in his opinion, the principal objects for which the union is actually carried on are not statutory objects.
42. ......................................................................................................................................................
43. (5) A trade union whose certificate of registration has been withdrawn or cancelled under this section shall, from the time of such withdrawal or cancellation, cease to operate as a trade union and shall be dissolved forthwith in accordance with the provisions of paragraphs (a), (b) and (c) of subsection (2) of section thirty-nine of this Ordinance, unless an appeal is made to the High Court against such withdrawal or cancellation under section eleven of this Ordinance : Provided that in the case of any withdrawal or cancellation in respect of which no appeal is made to the High Court and not being a withdrawal or cancellation made under the provisions of paragraph (a) of subsection (1) of this section, such withdrawal or cancellation shall not have effect until it is confirmed by the Governor in Council.
44. It should be observed that the above subsection (5) is an entirely new text brought in by the amendment of 1956. The former subsection (5) provided simply that a trade union whose certificate of registration had been withdrawn or cancelled should cease to enjoy as such the privileges of a registered trade union.
45. 232. Finally, section 11 of the Ordinance provides that any person aggrieved by any refusal of the Registrar to register a combination as a trade union or any decision to register a combination as a trade union, or by the cancellation or withdrawal of a certificate of registration, may appeal to the High Court. The Registrar is entitled to appeal and be heard on any such appeal.
46. 233. The important elements in the provisions cited above which are most relevant to the allegations being considered may be summarised as follows. Every trade union must apply for registration. If the formal requirements under the Ordinance are fulfilled and its rules provide for the matters mentioned in paragraph 230 above (these matters appear to be quite normal and in no way restrictive), the Registrar must register the union, unless, in his opinion, the principal objects of the union are not statutory objects (i.e. the regulation of relations between employees and employers or between employees and employees or between employers and employers) or the union is unable to implement any of the provisions contained in its rules. A trade union which does not register or the registration of which is refused must at no stage act in furtherance of its objects and must be dissolved within six months, on pain of penalties. Apart from what may be regarded as formal reasons, the Registrar shall withdraw or cancel the registration of a trade union if it has violated any provision of the Ordinance. He may withdraw registration if, in his opinion, the Constitution of a union has been so altered that its principal objects are no longer statutory objects, or if, in his opinion, the principal objects for which the union is actually carried on are not statutory objects. On withdrawal or cancellation of registration a union must, forthwith, cease to operate as a trade union and be dissolved. There is a right of appeal to the High Court against refusal, withdrawal or cancellation of registration.
47. 234. The Committee, on a number of occasions, has been called upon to consider provisions respecting the registration of trade unions in the light of generally accepted principles with regard to freedom of association ; in two of those cases - Case No. 29 relating to Kenya and Case No. 30 relating to Malaya -it had to examine registration provisions resembling those applicable in the present case and, at the same time, to have regard to the stipulations contained in the Right of Association (Non-Metropolitan Territories) Convention, 1947.
48. 235. In Case No. 29 (United Kingdom-Kenya), the Committee noted that the law provided for the compulsory registration of trade unions and that, on certain specified grounds-especially if a trade union catered for persons in more than one occupation and its Constitution did not suitably provide for the respective sectional interests-the Registrar could refuse to register a trade union, in which event the union was obliged to dissolve. The Committee took the view that the situation should be considered in the light of the stage then reached in the development of trade unionism in Kenya. Observing that the Right of Association (Non-Metropolitan Territories) Convention, 1947, was deliberately framed in general terms to correspond to actual conditions in most non-metropolitan territories and provides in broad and simple language that the rights of employers and employed alike to associate for all lawful purposes shall be guaranteed by appropriate measures, the Committee decided that the question at issue was whether the arrangements for registration provided for in the Kenya legislation were appropriate measures within the meaning of this provision. Having regard to the stage of development of trade unionism in Kenya, the Committee concluded that, while it would be desirable that the existing arrangements concerning registration in Kenya should be further reviewed by the Government, the allegations relating to that matter did not call for further explanation by the Governing Body in the then present circumstances.
49. 236. In Case No. 30 (United Kingdom-Malaya), the Committee noted that unions were obliged to register. If the Registrar was satisfied that the union had complied with the provisions of the relevant enactments and that its objects, Constitution and rules did not conflict with such provisions and were not unlawful and that the union was not likely to be used for unlawful purposes or purposes inconsistent with its objects and rules, he had to register the union. If any of the above conditions were not or ceased to be fulfilled, he could refuse to register the union or cancel its registration. An appeal lay from the Registrar to the Chief Secretary and there was a further right of appeal to the Supreme Court. A trade union failing to apply for registration or whose registration was refused or cancelled became an unlawful association and had to be dissolved. In that case, also, the Committee reviewed the arrangements relating to registration of trade unions under the legislation of Malaya in the light of the existing stage of development of the trade union movement and having regard to the provisions of the Right of Association (Non-Metropolitan Territories) Convention, 1947. The Committee observed that the trade union movement in Malaya was of recent origin and noted the Government's statement that the legislation was intended to ensure that trade unions should effectively accomplish the principal purpose for which they were set up, that their rules should conform to a reasonable standard and that their members were protected against speculation or misappropriation by unscrupulous officials. In those circumstances the Committee, while considering that it might be desirable that certain of the restrictions should be reconsidered at an appropriate time, recommended the Governing Body to decide that the allegations respecting registration did not call for further examination.
50. 237. In the present case the Committee notes that the trade union movement in Northern Rhodesia, like the movements in Kenya and Malaya, is of very recent origin, and considers that it should follow the procedure it adopted in those cases when it bore the above fact in mind while reviewing the legislation concerning trade union registration in the light of the provisions of the Right of Association (Non-Metropolitan Territories) Convention, 1947. In the case relating to Malaya, in particular, the Committee had to examine the legislation concerning deregistration and its consequences, as well as that relating to registration ; it will be noted that this legislation was substantially the same as the legislation on the same subjects in Northern Rhodesia and the reasons given by the Government for considering such arrangements to be necessary were also similar. In the present case, therefore, having regard to all the circumstances and, in particular, the existence of an appeal to the High Court, the Committee, while of the opinion that it may be desirable that certain of the restrictions should be reconsidered at an appropriate time, recommends the Governing Body to decide that the allegations do not call for further examination.
51. Allegations relating to Registration of Trade Union Offices
52. 238. It is alleged that trade unions are obliged to have a registered office and that the penalties for not having such an office have been increased by the amending Ordinance. It should be noted that even under the principal Ordinance of 1949, at a time when trade union registration was optional, trade unions were obliged to have a registered office and were liable to penalties in default. The Committee considers that the requirement, on pain of penalty, that a trade union shall have a registered office is a normal requirement in a large number of countries and that no proof has been offered to show that this requirement under the law of Northern Rhodesia in itself constitutes an infringement of trade union rights. The Committee therefore recommends the Governing Body to decide that these allegations do not call for further examination.
53. Allegations relating to the Registrar's Powers of Inspection and Control of Assets of Trade Unions
54. 239. It is alleged that there is interference with trade union activities because the Registrar has the right to inspect union accounts and hold inquiries into union financial matters, is permitted, in addition to the union trustees, to sue a defaulting union treasurer, and has special powers with respect to the assets of a union in process of being dissolved. The Government states that the legal provisions criticised in these allegations have been found necessary to prevent abuses and to protect union members against possible malpractices by union officials.
55. 240. Section 15 of the principal Ordinance, which provides for the making of annual returns by trade unions in a manner substantially similar to that prescribed in like case in a large number of countries, is still in force, as is section 17, which provides for the property of a trade union to be vested in the trustees of the union. The amending Ordinance inserts new sections 15A, B, C and D, which read as follows:
56. 15A. (1) The Registrar or any person authorised by a general or special order in writing by him shall at all reasonable times have access to all records of financial transactions of a trade union, and shall be entitled to inspect the cash in hand held by it ; and every officer or member of the trade union shall furnish such financial information in regard to the transactions and working of the trade union as the person making such inspection may require.
57. (2) The Registrar may hold an inquiry or direct some person authorised by him in writing in this behalf to hold an inquiry into the accounting and financial conditions of a trade union and may communicate the findings of such an inquiry to the members of the union, and all members and officers of the trade union shall furnish such financial information in regard to the affairs of the trade union and produce the cash in hand held by it and such records of financial transactions of the trade union as the Registrar or person authorised by him may require.
58. 15B. Every registered trade union shall, when called upon to do so by the Registrar, make such payments for audit and inspection as may be fixed by regulation.
59. 150. Any member of a trade union or the Registrar may apply to a magistrate for an injunction prohibiting an officer of such trade union from holding office or controlling trade union funds, and the magistrate, if he is satisfied that there is a prima facie case against such officer for the fraudulent misuse of the trade union's funds, or that such officer is disqualified by section fifteen D of this Ordinance from holding office in a trade union, may make such injunction.
60. 15D. No person who has been convicted of any offence involving fraud or dishonesty shall within five years of the date of such conviction be an officer or a person employed in collection of funds of a trade union.
61. 241. The Committee considers that these provisions do not appear to give to the Registrar the power to impede a union in carrying out its activities or in devoting its funds to any legitimate purpose authorised by law or by its rules. The Committee notes especially, with regard to section 150, that the power of the Registrar to apply for an injunction to the courts is additional to the similar power of a member of the union and does not supplant it. Protection against abuse of the power by the Registrar would appear to lie in the fact that the magistrate can grant the injunction only on grounds which manifestly make an injunction a means of protecting the real interests of the union and of its members. It is also to be noted that section 21 of the principal Ordinance, which is not criticised by the complainants, already gave the Registrar power to lay a complaint before the competent court in a case in which union moneys might actually be fraudulently withheld.
62. 242. In these circumstances, while emphasising, as in a previous case, the importance of the right of workers to set up the organisations of their own choice and of the freedom of such organisations to draft their own statutes and internal regulations and to organise their own management and activities, all of which rights presuppose financial independence, and the fact that provisions governing the financial arrangements of workers' organisations should not be of such a character as to give the public authorities discretionary powers over them, the Committee considers that no proof has been furnished to show that the enactment of sections 15A, B, C and D above constitutes an infringement of trade union rights, and, therefore, recommends the Governing Body to decide that the allegations relating thereto do not call for further examination.
63. 243. Finally, the complainants criticise the powers given to the Registrar when a trade union is being dissolved. The relevant provisions are contained in section 39 of the Ordinance as amended in 1956. This section reads as follows
64. 39. (1) Notice of the intention of a trade union to dissolve shall be sent under the hand of the secretary and seven members of the same to the Registrar : Provided that where the number of members of the trade union is less than seven the notice of dissolution shall be signed by all such members.
65. (2) Where a notice of dissolution has been made under the provisions of subsection (1) of this section, the following procedure shall apply:
66. (a) the property of the trade union shall forthwith vest in the Registrar ;
67. (b) the Registrar shall proceed to wind up the affairs of the trade union and, after satisfying and providing for all debts of the winding-up, prepare and submit to the trade union or the members thereof who signed the notice of dissolution in accordance with subsection (1) of this section for their information a scheme for the application of the assets to purposes likely to benefit that portion of the community to which the members of the trade union more particularly belonged or the community generally;
68. (c) for the purpose of the winding-up the Registrar shall have all the powers of the Official Receiver in bankruptcy for the purpose of discovery of the property of a debtor and the realisation thereof and also all powers as are by the law relating to companies vested in an official liquidator.
69. 244. The Committee considers that the fact that the Registrar, on dissolution of a union, acts as an official liquidator, is not in itself a matter for criticism. In these circumstances, and subject to the powers of the Registrar being exercised in a manner which respects the rights and views of the members of the organisation concerned, the Committee considers that no proof has been offered to show that such powers constitute an infringement of trade union rights and, therefore, recommends the Governing Body to decide that the allegations relating thereto do not call for further examination.
70. Allegations relating to Picketing
71. 245. It is alleged that the amending Ordinance severely restricts, if it does not abolish, the right to picket in connection with a strike. The Government denies this, stating that the new provisions simply explain the limits of the right to picket as it appears in the principal Ordinance.
72. 246. Section 25 of the principal Ordinance, as amended by section 10 of the new Ordinance of 1956, reads as follows :
73. 25. (1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a place, not being a dwelling-house, where a person works or carries on business, if they so attend merely for the purposes of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.
74. (2) It shall be unlawful for one or more persons, whether acting on their own behalf or on the behalf of a trade union or an individual employer or firm and notwithstanding that they may be acting in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works, or carries on business, or happens to be, for the purpose of obtaining or communicating information or of persuading or inducing any person to work or to abstain from working, if they so attend in such numbers or otherwise in such manner as to be calculated to intimidate any person in that house or place, or to obstruct the approach thereto or regress therefrom, or to lead to a breach of the peace.
75. (3) Any person attending at or near any house or place in such numbers or otherwise in such manner as is by subsection (2) of this section declared to be unlawful shall be deemed to be watching and besetting such house or place within the meaning of section twenty-nine of this Ordinance.
76. (4) Notwithstanding the provisions of subsection (1) of this section it shall be an offence for one or more persons, for the purpose of persuading or inducing any person to work or to abstain from working, to watch and beset at or near a house or place where a person resides and any person who acts in contravention of this subsection shall be liable to a fine not exceeding twenty pounds or to imprisonment for a term not exceeding three months.
77. 247. The Committee considers that it is unnecessary, for the purposes of the present case, for it to consider any question of principle relating to picketing, since no proof has been offered that the provisions relating to picketing have been applied in a manner which infringes trade union rights ; in these circumstances it recommends the Governing Body to decide that this allegation does not call for further examination.