Informe provisional - Informe núm. 58, 1962

1. 590. The complaint of the W.F.T.U is contained in a communication addressed directly to the I.L.O on 28 January 1961. When the complaint was communicated to the Government for its observations, by a letter dated 9 February 1961, the attention of the Government was drawn to the fact that, as matters involving personal freedom were raised in the complaint, the present case fell within the category of cases regarded by the Governing Body as urgent and in which, in accordance with the decision of the Governing Body at its 140th Session (November 1958), the special attention of the Government is to be drawn to this fact when the complaint is communicated to it and the Government is to be specially requested, on behalf of the Governing Body, to furnish for this reason a particularly speedy reply. The Government of the United Kingdom furnished its observations, based on information stated to have been supplied by the Government of Southern Rhodesia, in a communication dated 12 May 1961.
2. 591. The Government of the United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), and has undertaken, with the agreement of the Government of Southern Rhodesia, to apply its provisions without modification to Southern Rhodesia. The Government has also ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has reserved its decision regarding the application of the provisions of these Conventions to Southern Rhodesia.

A. A. The complainants' allegations

• Allegations relating to the Detention or Restriction of Movements of Trade Union Leaders
  592. 592 It is alleged that, following the declaration of a State of Emergency in Southern Rhodesia in February 1959, more than 30 trade union leaders were detained, with the aim of crippling the trade unions. About 20 of them are alleged still to have been in detention in January 1961, including: Mr. J. T. Matuleke, Honorary General Secretary of the Southern Rhodesia African Trades Union Congress and General Secretary of the Southern Rhodesia African Commercial Workers; Mr. K. Mhizha, Treasurer of the Southern Rhodesia African Trades Union Congress and President of the Southern Rhodesia Transport and Allied Workers' Union; Mr. E. Sitole, Trustee of the Southern Rhodesia African T.U.C. The complainant states that they are held in Marandelles prison under the Preventive Detention Act, 1959, which was enacted after their arrest, and that they were tried by tribunals in secret, without proper facilities for defence. Other trade union leaders are alleged to be subject to restriction orders, including Mr. Musarurwa, President of the Southern Rhodesia African Commercial Workers and Mr. R. Foya, Chairman of the Gwelo branch of the Transport and Allied Workers' Union.
  593. 593 The Government declares that the detention of the persons concerned was due entirely to their subversive activities and not to the fact that they were trade union leaders. Although the State of Emergency has since terminated, the authorities still consider it necessary in the interests of public safety to detain or keep under restriction orders a number of persons, including those referred to by name in the complaint.
  594. 594 Detained persons appearing before the Review Tribunal were not, declares the Government, " without proper facilities for defence ", as alleged. Section 6 (6) of the Preventive Detention (Temporary Provisions) Act, 1959, provides for the legal representation of detained persons before the Tribunal. The Government states that those who wished to be legally represented were afforded every facility for this purpose and were so represented, while in the case of persons who had inadequate funds arrangements for legal representation were made by the governmental authorities.
  595. 595 The Committee observes, from the Government's reply, that the cases of detained persons are brought before a Review Tribunal; they have not been " tried ", as the complaint would make it appear.
  596. 596 In several earlier cases, in which it was alleged that trade union officers or members had 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 human rights and especially of the right of all detained persons to receive a fair trial at the earliest possible moment. The Committee had also expressed the view 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.
  597. 597 In the past, moreover, where allegations that trade union leaders or workers have been arrested or detained for trade union activities or that their arrest or detention has restricted the exercise of trade union rights have been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security, or for common law crimes, the Committee has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests or detentions, particularly in connection with the legal or judicial proceedings instituted and the result of such proceedings. If in certain cases the Committee has concluded that allegations relating to the arrests or detentions of trade union militants did not call for further examination, this has been after it has received information from the governments showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature
  598. 598 In the present case, beyond stating that the detentions were due to subversive activities and that it is still considered necessary to detain or restrict the movements of certain of the persons concerned in the interests of public safety, the Government furnishes no precise details as to the reasons for the detentions or as to any subsequent proceedings that might have been taken.
  599. 599 In these circumstances the Committee requests the Government to state how many of the 20 trade union leaders referred to by the complainants are still in detention or subject to restriction orders and to furnish more detailed information as to the reasons for which measures were taken against them, and, having regard to the principles set forth in paragraphs 596 and 597 above, as to when it is intended to bring to trial those of the persons concerned against whom proceedings may not yet have been taken. Having regard to the decision of the Governing Body at its 140th Session (November 1958) referred to in paragraph 590 above, the Committee requests the Government to be good enough to furnish the above information as a matter of urgency.
• Allegations relating to the Application of the Emergency Powers Bill in Southern Rhodesia
  600. 600 It is alleged that the Emergency Powers Bill enables the Governor to amend or suspend arbitrarily an existing law, to order the removal of people from one part of the colony to another and to order summary arrest or detention. The Government does not refer specifically to this point, although it declares that the State of Emergency has been lifted.
  601. 601 The complainants allege no specific case in which the Bill has been applied so as to restrict the exercise of trade union rights. The cases of detention and restriction of movements of trade union leaders already examined above were alleged to have taken place pursuant to the Preventive Detention Act, 1959.
  602. 602 In these circumstances the Committee considers that these particular allegations are too vague to permit of their being examined on their merits and, therefore, recommends the Governing Body to decide that they do not call for further examination.
• Allegations relating to the Application of the Vagrancy Act in Southern Rhodesia
  603. 603 It is alleged that the Vagrancy Act enables the police to arrest without warrant any " apparent " vagrant and take him before a magistrate, and that if the magistrate rules that he is a vagrant he is sent to a " rehabilitation " centre. In the view of the complainant, the law constitutes a constant threat to all African organisations, including the trade unions. The complainants allege that in fact the rehabilitation centres are forced labour camps and that about 1,000 Africans are now detained in them.
  604. 604 The Government denies that the Vagrancy Act is being used as an instrument for preventing freedom of association and states that no trade union leader has ever been committed to a re-establishment centre. With regard to the allegation of forced labour, the Government declares that the training given to vagrants is purely to fit them for suitable occupations. They are not employed on public works or hired out to private employers and may only be employed outside a centre to the extent necessary in the interests of their training. Among the occupations which they are taught are carpentry, painting, sign writing, tailoring, shoe-repairing, elementary car maintenance, building, cooking, gardening and laundry work. On the occasion of the African Regional Conference (Lagos, December 1960), declares the Government, the I.L.O was invited to send representatives to visit the re-establishment centres, which have been inspected by a representative of the International Red Cross. The number of vagrants at present committed to re-establishment centres is 361 Africans, 14 Europeans and 15 persons of mixed race.
  605. 605 Although the complainants allege that the Vagrancy Act constitutes a constant threat to all African organisations, including the trade unions, they do not refer to any instance in which the Act has been used to the detriment of the trade unions or to the exercise of trade union rights. They allege that 1,000 Africans are detained in the rehabilitation centres-the Government gives a smaller figure, not all Africans-but do not claim that these persons have any trade union status or have been detained under the Vagrancy Act because of any specific trade union activity. The Committee considers, therefore, that the complainants have not furnished sufficient evidence in proof of the contention that the Act constitutes a threat to the trade unions.
  606. 606 In these circumstances the Committee recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations regarding Registration of Trade Unions under the Industrial Conciliation Act, 1959.
  607. 607 It is alleged that trade union rights are severely restricted by the Industrial Conciliation Act, 1959, and, in particular, that the Registrar can, on his own judgment, refuse to register a union if he is not satisfied that the union " is a responsible body and reasonably capable of taking part in the negotiation of matters of mutual interest between employer and employee ".
  608. 608 The Government declares that the Act is completely non-racial and has extended to Africans all the benefits of statutory industrial conciliation machinery, which previously applied to non-Africans only. Against refusal of registration of a union by the Registrar, appeals lie in most instances to the courts-in one instance, as will be seen from the citation below, to the Minister. The Government considers that the safeguards afforded by section 37 of the Act, which it cites in full, " are appropriate to circumstances in Southern Rhodesia, where the development of the trade unions is at a relatively early stage ".
  609. 609 Section 37 of the Industrial Conciliation Act, 1959, cited in full by the Government in its reply, reads as follows:
  37. 37 (1) The Registrar shall not register an applicant union or organisation unless he is satisfied that:
      • (a) the requirements of section 36 have been complied with;
      • (b) the Constitution is consistent with this Act and does not contain provisions which are contrary to provisions of any law or are calculated to hinder the attainment of the objects of any law or are not in the interests of the effective functioning of the trade union or employers' organisation concerned or are contrary to the public interest;
      • (c) the union or organisation is a responsible body and reasonably capable of taking part in the negotiations of matters of mutual interest between employer and employee in accordance with the provisions of this Act;
      • (d) the union or organisation has not been formed for the purpose of evading the provisions of any law; and
      • (e) the union or organisation does not exist or was not formed for the purpose of furthering the interests of its members on a basis of race, colour or religion.
  2. (2) If, in considering the Constitution of a trade union or employers' organisation or any alteration thereof, the registrar is unable to decide whether any provision is, or is not, in accordance with law or is, or is not, contrary to the public interest or is of the opinion that any provision is unreasonable in relation to the members or the public, he shall refuse to approve of such provision and shall approve only of such provisions as he is satisfied are in accordance with law, are not contrary to the public interest and are reasonable in relation to the members or the public, as the case may be.
  3. (3) Any trade union or employers' organisation aggrieved by any decision of the registrar under this section may:
     • (a) if the decision is based on the ground of the public interest or reasonableness in relation to members of the public, appeal against that decision to the Minister, whose decision shall be final;
     • (b) if the decision is based on any other ground, appeal against that decision to the industrial court.
  610. 610 In the first place, it would appear that a registrar shall not register a union unless he is satisfied that its Constitution contains no provisions contrary to the public interest (section 37 (1) (b)), and that, in considering such Constitution, he shall refuse to accept any provision when he is unable to decide whether it is contrary to the public interest or not or when he is of opinion that it is unreasonable in relation to the public (section 37 (2)); an appeal lies against such decisions only to the Minister, whose decision shall be final (section 37 (3) (a)).
  611. 611 In this connection the I.L.O. Committee of Experts on the Application of Conventions and Recommendations has suggested that appeals against decisions of registrars should lie to the court, a fact noted by the Committee on Freedom of Association in Case No. 194 relating to Singapore, when it recommended the Governing Body to draw the attention of the Government of the United Kingdom to the same principle.
  612. 612 The Committee observes further that it would appear from section 37 of the Act that the Registrar shall not register a union unless he is satisfied, inter alia, that the other requirements contained in section 37 (1) (b) and (c) are fulfilled. The question as to whether these particular requirements are fulfilled is one upon which the Registrar has to form his own judgment, although here an appeal lies against his decision to the courts. In such cases, as the Committee of Experts has pointed out, " the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal... would only be able to ensure that the legislation had been correctly applied ".
  613. 613 In these circumstances, while drawing the Government's attention to the importance of the principle of an appeal to the courts referred to in paragraph 611 above, the Committee requests the Government to state by what criteria, if any, the Registrar is bound or guided, as the case may be, in forming his judgment of the different matters concerning which he is required to satisfy himself under section 37 of the Act.
• Allegations relating to Union Rules concerning the Voting Rights of the Members
  614. 614 It is alleged that the Government, as a condition for recognition, is imposing a standard Constitution on multi-racial unions, under which there are three grades of members, a B and C, or skilled, semi-skilled and unskilled, with different rights; for example, Grade A members (in effect, white workers) having one vote each, Grade B members having half a vote each, and Grade C members (in effect, Africans) having one-quarter of a vote each.
  615. 615 The Government states that the allegation that a certain standard is being imposed is without foundation. Provided that trade unions include certain basic regulations for the good government of the union in their rules, says the Government, they are free to include any other matters which they wish, and also to determine their own system of voting.
  616. 616 In these circumstances the Committee considers that no sufficient proof has been furnished in support of this allegation.
• Allegations relating to the Organising Rights of Agricultural Workers, Domestic Workers and Government Employees
  617. 617 It is alleged that agricultural workers, domestic workers and government employees cannot be members of trade unions.
  618. 618 The Government states that, while the Industrial Conciliation Act does not provide for unions of agricultural workers or domestic workers, such workers are not debarred or prohibited by law from forming unions. Established civil servants can form their own employees' association, which is recognised by the Government for negotiating purposes; they cannot form unions which register under the Industrial Conciliation Act, 1959. Unestablished civil servants can belong to unions registered under the Act.
  619. 619 At its meeting in March 1961 the I.L.O. Committee of Experts on the Application of Conventions and Recommendations made an Observation, in respect to these matters, in connection with the application of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84) in Southern Rhodesia." The Committee of Experts regretted to note that the Act, by virtue of section 4 (2) (a) thereof, does not apply to " persons in respect of their employment in farming operations (including forestry) or any domestic persons in private households " and stated that it would be glad if the Government would indicate the measures which it is proposed to take to guarantee the right of these workers " to associate for all lawful purposes ", as required by the Convention, which applies to all employed persons.
  620. 620 The Committee recommends the Governing Body to decide, having regard to the observation of the I.L.O. Committee of Experts cited in the preceding paragraph and to the fact that considerable safeguards and protection are offered to unions registered under the Industrial Conciliation Act, 1959, as compared with those which cannot so register, to request the Government to state what measures it intends to take to ensure the guarantee and protection of the right to organise of agricultural and domestic workers in the same way as industrial workers, whose organisations can register under the Act.