Informe definitivo - Informe núm. 36, 1960

1. 121. The complaint of the World Federation of Trade Unions is contained in a communication addressed to the I.L.O on 30 June 1958. The Government forwarded its observations on the complaint by a letter dated 5 November 1958. At its 21st Session (Geneva, February 1959), the Committee decided to request the Government to furnish further information on certain aspects of the case. This request was conveyed to the Government by a letter dated 11 March 1959, to which the Government replied on 20 March 1959.

A. A. The complainants' allegations

• Allegations relating to a Circular Addressed to Employers
  122. 122 It is alleged that, on 23 April 1958, the Director of the Non-European Affairs Department of the Town Council of Benoni (Transvaal) addressed a circular to all employers of native labour, in which it was stated that the Department had been instructed by the Regional Employment Commissioner that, in terms of Government Notice No. 2495 of 1952, any native employee discharged as a result of taking part in strikes, demonstrations, absenteeism from work, etc., must not under any circumstances again be placed in employment without the specific approval of the Regional Employment Commissioner. The circular goes on to state, declares the complainant, that the Regional Employment Commissioner further instructs that special separate records and other information as may be considered necessary must be kept of each such native employee and that employers of native labour be requested to furnish the local bureau with further particulars of such cases.
  123. 123 After repeating the view which it has expressed on several occasions as to the question of the Constitutionality of the establishment of the Committee on Freedom of Association, the Government, without prejudice to its view, commented on the substance of the allegations in its letter dated 5 November 1958.
  124. 124 The Government declares that Government Notice No. 2495 of 1952 respecting the establishment and control of Native Labour Bureaux - which perform, in respect of natives, the normal placement functions of offices of that kind - makes no provision whatsoever for discharges and for conditional re-employment of workers taking part in strikes. The Government adds " that the local authority concerned inadvertently issued the relevant circular and that it has subsequently been withdrawn without effect having been given to the provisions thereof ".
  125. 125 The essential point in these allegations is that the competent local authority issued a circular which constituted an intervention by the authority in order to oblige employers to cause prejudice to native workers who might take part in certain forms of trade union activity-such as strikes, demonstrations, etc. - as well as certain other forms of activity, e.g. absenteeism, not necessarily constituting trade union activity. The Committee considers that the issue of such a circular, if it had not been withdrawn, could have caused interference with the rights of workers to pursue concerted activities through their trade unions and, in particular, would have involved a breach of the generally accepted principle that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment. It would seem, however, that the circular was withdrawn. In these circumstances the Committee, subject to the foregoing observations, recommends the Governing Body to decide that no useful purpose would be served by examining this aspect of the matter further.
• Allegations relating to a Strike at the Amato Textile Factory
  126. 126 It is also alleged that, in February 1958, after a strike at the Amato Textile Factory, the Non-European Affairs Department obliged the employer to discharge all his workers and to re-engage personnel through the State Department, that 340 workers were thus victimised and that all the members of the Factory Committee and of the Workers' Trade Union Executive were refused re-engagement as a result of this intervention by the Government.
  127. 127 With respect to the strike at the Amato Textile Factory the Government declared, in its communication dated 5 November 1958, that its officials addressed the strikers and tried without success to persuade them to return to work so that the dispute could be dealt with in accordance with the provisions of the Native Labour (Settlement of Disputes) Act, 1953 ; this refusal to return to work terminated their services. While stating further that the employer re-engaged the majority of the workers but that not all of them were required " due to reorganisation ", the Government made no specific reply to the allegations that the Non-European Affairs Department obliged the employer to discharge all the workers and that all the members of the Factory Committee and of the Workers' Trade Union Executive were among those refused re-engagement. The Committee, therefore, at its meeting in February 1959, decided to request the Government to be good enough to furnish information on these two specific points before it formulated its recommendations to the Governing Body.
  128. 128 In its further communication dated 20 March 1959, the Government states that it should be clear from its earlier reply that no connection existed between this stoppage of work and the circular referred to in paragraph 124 above, which was withdrawn without effect having been given to the terms thereof. The Government adds that labour bureaux merely canalise native labour requirements and that an employer is free to engage the available workers to such extent as is in accordance with his own requirements and wishes.
  129. 129 The Government again makes no attempt to refute the allegation that " all the members of the factory committee and of the workers' trade union executive " were among those of the workers participating in the strike to whom re-engagement was refused. On the other hand, the Government appears to deny, but still implicitly rather than directly and specifically, that it obliged the employers to take the action that they did ; the Government states that the employers remained free to engage such of the available workers as they required and desired.

B. B. The Committee's conclusions

1. 130. Precisely how far the authorities did or did not influence the employers in reaching their decision is a question on which the Committee, in view of the conflicting evidence before it, feels that it is impossible to reach a conclusion. But the Government has not denied the allegation that this decision, taken by the employers when they re-engaged the majority of the strikers (but, " due to reorganisation ", not " all " of them), involved the exclusion from re-engagement of every member of the workers' factory committee and trade union executive. It seems apparent to the Committee that in re-engaging a majority of the workers the employers could hardly, by sheer coincidence, have included among the minority who were not re-engaged every member of two separate bodies which represented the workers concerned, and that, in consequence, the evidence before it points strongly to anti-union discrimination having been practised in respect of employment on the ground of participation in trade union activity-participation in and direction of the strike at the factory. The question at issue would seem to be whether the strike in this case was a legitimate activity in respect of which workers should enjoy protection against anti-union discrimination.
2. 131. In Case No. 102 relating to the Union of South Africa the Committee has already had occasion to consider the position of the African workers in relation to the exercise of the right to strike and of the right of representation by their trade unions. In that case, while considering that it is not called upon to give an opinion on the question as to how far the right to strike in general should be regarded as constituting a trade union right, the Committee nevertheless observed, as it had done in several earlier cases, that the right to strike is generally accorded to workers and their organisations as an integral part of their right to defend their collective interests, and went on to express the view that, where the right to strike is accorded to workers and their organisations, there should be no racial discrimination with respect to those to whom it is accorded. After reviewing the respective positions of European workers (under the Industrial Conciliation Act) and of Africans, under the Native Labour (Settlement of Disputes) Act, 1953, which makes all strikes by Africans illegal, without providing (as in the case of Europeans) for the participation of their trade unions in procedures for the settlement of disputes, the Committee concluded in Case No. 102 that it was its duty to draw attention to the existence of discrimination as between African workers and other workers with respect to the prohibitions placed on the right to strikes