Informe definitivo - Informe núm. 197, Noviembre 1979

1. 70. In a communication of 21 February 1979 the Italian Federation of Transport and Traffic Auxiliary Workers' Unions (Italian Confederation of Workers' Unions) (FILTAT-CISL) submitted allegations of violation by the Italian Government of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 67), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers' Representatives Convention, 1971 (No. 135); it stated that these allegations were based on article 24 of the Constitution of the ILO.
2. 71. The Committee examined these allegations on the basis of decisions taken earlier by the Governing Body in similar situations in which a representation submitted under article 24 of the Constitution referred to questions of freedom of association.,
3. 72. The FILTAT-CISL communication was transmitted to the Italian Government for its comments in accordance with the procedure applicable to complaints of violation of freedom of association. The Government sent its observations in a letter of 13 September 1979.
4. 73. Italy has ratified Conventions Nos. 87 and 98 mentioned above, but has not ratified Convention No. 135, also mentioned by the complainant.

A. A. The complainants' allegations

1. 74. FILTAT-CISL states that it is acting in the defence of the local staff of a subsidiary body of NATO in Italy. It complains that it has not been able to establish industrial relations with this employer, although the legitimacy of its action is recognised by, for example, a similar body (of the United States) on Italian territory. The impugned employer is alleged to have favoured another union, described by the complainant as being "of a tractable nature", and the complainant considers that it has been the victim of discriminatory treatment.
2. 75. FILTAT-CISL then goes into some detail regarding the reasons for which it considers its complaint of violation of freedom of association by the Italian Government to be justified. It claims that, quite apart from the provisions in force between the States Members of NATO, Italy and NATO itself, traditional international law sets precise limits to the immunities and privileges of foreign States and international organisations in Italy. The complainant accompanies its development of this point by quotations from various provisions of the Italian Constitution.
3. 76. The complainant next cites the international agreements concerning the position of personnel with local status within the framework of NATO: the Agreement between the Parties to the North Atlantic Treaty regarding the Status of Their Forces (signed in London on 19 June 1951), the Protocol on the Status of International Military Headquarters Established by Virtue of the North Atlantic Treaty (signed in Paris on 28 August 1952) and the Agreement between the Government of the Italian Republic and the Supreme Allied Commander in Europe on the special conditions applicable to the establishment and operation in Italian territory of international military headquarters which are or may be there installed (signed in Paris on 26 July 1961). Article IX(4) of the London Agreement, adds the complainant, provides that conditions of employment and work, in particular wages and wage supplements and the conditions of protection of the workers concerned, shall be regulated in accordance with the legislation in force in the host State. The Paris Agreement of 26 July 1961 provides that the conditions of employment and work of personnel with local status in Italy shall be regulated by Italian law; the subsidiary bodies of NATO must guarantee conditions of employment not less favourable than those envisaged by Italian law and by the collective work contracts applicable in Italy to those duties most closely paralleling the duties performed by such personnel; finally, it is stipulated that labour disputes involving a subsidiary body and the civilian personnel concerned will be settled by the appropriate NATO internal authority, without prejudice, however, to the right of such personnel to the jurisdictional protection afforded by Italian law (article 8(d), (e) and (f)).
4. 77. The complainant mentions further provisions from which, in its view, it would appear that the relations between NATO subsidiary bodies and the civil personnel mentioned above are of a private law nature, and are governed by Italian law. Among the provisions which it considers to be applicable, FILTAT-CISL cites in particular Act No. 300 of 20 May 1970 (respecting the protection of workers freedom and dignity, trade union freedom and freedom of action within the workplace, and provisions respecting placement) and collective labour agreements.
5. 78. The Court of Cassation, in an order of 2 March 1978, a copy of which is attached to the complaint, gave a negative ruling on the question of whether there existed principles or standards permitting the extension to the above-mentioned subsidiary bodies of the substantive and procedural rules by virtue of which trade union activities at the workplace are regulated under Italian law. The Court analysed the relevant international instruments and stressed that the clause according to which the subsidiary bodies must guarantee conditions of employment not less favourable than those envisaged by Italian law and by the collective agreements applicable in Italy did not cover trade union rights.
6. 79. In contesting this order the complainant particularly invokes arguments drawn from Italian law. It also stresses that nearly all Members of NATO have subscribed to international Conventions making it binding upon the contracting parties to respect freedom of association, in particular ILO Conventions Nos. 87, 98 and 135, and stresses the pre-eminence of these instruments. Finally, it attaches a series of documents to its complaint.
7. 80. In its reply the Government states that much of FILTAT's case refers to matters outside the competence of the ILO and its Committee on Freedom of Association. It recalls that the labour relationship of civilian personnel in the service of NATO is governed by article IX, paragraph 4, of the Agreement signed in London on 19 June 1951 and by article 8(d) of the Headquarters Agreement signed in Paris on 26 July 1961. On the basis of these texts, it adds, FILTAT appears to be attempting to obtain an opinion from the Committee on the conditions and the limits of applicability to Italian personnel working at NATO bases of Italian Act No. 300 respecting the status of workers and of the system of legal protection which the above-mentioned international instruments are designed to secure. The Government considers that an attempt is being made to get the Committee to intervene in matters outside its field of competence: its role is linked with the application of ILO Conventions and it has rejected suggestions that it should be transformed into a sort of non-judicial instance for reviewing the internal procedures of each State. The Government goes on to say that FILTAT is trying to press for a change in the position adopted by the Court of Cassation itself regarding the conditions of application of the above-mentioned Act No. 300, and that such an approach is unacceptable: the issue relates to an internal Act which, as far as workers' protection is concerned, goes beyond even the ILO Conventions; it has been settled by the supreme national judicial authority, and the Constitutional Court has also given rulings on certain aspects lying within its specialised field of competence.
8. 81. Accordingly, continues the Government, the Committee on Freedom of Association is competent only as regards matters covered by Conventions Nos. 87, 98 and 135, invoked by the complainant. ILO Conventions, however, are binding only on those States which have ratified them and do not commit international organisations as such. Although there may doubtless be questions of co-ordination between the international obligations contracted by a State which is simultaneously a party to ILO Conventions and a Member of an international organisation (and hence bound by the international instruments adopted by that organisation), there is no formal order of priority which may affect the validity of such obligations or permit the infringement of the independence and sovereignty of the State concerned: it is for the State to ensure the co-ordination of its international obligations with due regard for their nature and purpose.
9. 82. The Government further states that one should not overlook the fact that an international organisation is composed of a number of member States. A State which is bound by ILO Conventions cannot but be aware of the multiple presence of other member States in a given international organisation when the application of such Conventions by it leads it into areas of common concern to the States Members of that organisation in concrete terms, a State which, like Italy, is bound by ILO Conventions Nos. 87 and 98 cannot be unaware that the conditions of application of these Conventions in fields for which an international organisation such as NATO has been given the responsibility might have implications for the position of other States which are Members of that organisation. The intention is not, stresses the Government, to limit the scope of application of ILO Conventions, but to ensure that the conditions under which these instruments are applied are determined by mutual agreement under the international instruments by which that organisation is governed.
10. 83. The Government states that it has not failed to comply with these principles in applying ILO Conventions in comparable situations. It has not been unaware of the questions raised by FILTAT in its complaint and has communicated them to the competent NATO authorities. It remarks that it has in principle confined itself to drawing the attention of these authorities to complaints from trade union quarters and has avoided giving any opinion as to their substance, in order to protect the trade union organisation; this stand has been dictated in particular by the fact that most of the matters at issue have for long been governed by internal judicial procedures.
11. 84. In the view of the Italian Government it is thus impossible to reproach it with having violated Conventions Nos. 87, 98 and 135; as regards the conditions of their application at NATO bases (which are governed by internal NATO agreements) the Government has fulfilled its obligations arising out of the ILO Conventions, bearing in mind the existence of other international instruments of at least equal scope and the interests of the other States Members of NATO which are also involved. The Government next refers to the specific nature of international organisations as laid down in article 55 of the United Nations Charter in support of its position which, in its view, is in conformity with that to be expected of any State that is bound by an ILO Convention when the implementation of such a Convention requires flexibility in coordination with other international instruments and bodies.
12. 85. In these circumstances the Government states that its remarks on the allegations relating to Conventions Nos. 87, 98 and 135 are of an incidental nature and have been dictated by a concern to explain its position on the complaint as a whole. It points to the general nature of the allegations relating to Convention No. 87, which in its view provide no facts which can in any way support an assertion that this instrument has been violated. As regards Convention No. 98, continues the Government, the allegations do not appear to refer to the subjective rights of the workers and it is thus recognised that they have been respected; it is the workers' right to organise which is said to have been affected by the attitude allegedly adopted by the authorities at certain NATO bases and which is claimed to have taken the form of a refusal to bargain with FILTAT-CISL. The problem, in the Government's view, is to avoid discrimination against certain trade unions and the placing of certain organisations in a dominant position with respect to the others. In this respect it stresses that the Committee on Freedom of Association has not considered refusal by an employer to bargain with a given trade union as violation of freedom of association. Finally, the Government observes that no precise allegation has been made in connection with Convention No. 135, also mentioned by the complainant.
13. 86. The Committee observes that FILTAT-CISL expressly states that its representation under article 24 of the ILO Constitution is presented against the Italian Government for violation of the freedom of association Conventions. Nevertheless, the specific allegations contained in its communication refer to subsidiary bodies of NATO located in Italy as regards their civilian personnel with local status; the allegations concern the Government of Italy only to the extent that, as the Government of the host country, it may enforce the application of the Conventions on freedom of association in the industrial relations between international bodies and the personnel concerned. On this point the various international Conventions mentioned both by the complainant and by the Government (Agreement between the Parties to the North Atlantic Treaty regarding the Status of Their Forces, signed in London on 19 June 1951; Protocol on the Status of International Military Headquarters Established by Virtue of the North Atlantic Treaty, signed in Paris on 28 August 1952; Headquarters Agreement between the Government of the Italian Republic and the Supreme Allied Commander in Europe, signed in Paris on 26 July 1961) fix the special legal status of the above-mentioned subsidiary bodies and the various categories of persons working therein.
14. 87. As regards civilian personnel with local status in particular, contractual conditions and conditions of employment are regulated by Italian legislation (article IX, paragraph 4, of the London Agreement; article 8(d) of the Headquarters Agreement). The subsidiary bodies may fix the conditions of employment and the responsibilities and duties of such staff, on the understanding that they guarantee conditions of employment not less favourable than those envisaged by Italian law and by the collective work contracts applicable in Italy to those duties mostly closely paralleling the duties to be performed by such personnel. Labour disputes involving a subsidiary body of NATO and the civilian personnel concerned will be settled by the appropriate NATO authorities, without prejudice, however, to the right of such personnel to the jurisdictional protection provided by Italian law (article 8(e) and (f) of the Headquarters Agreement).
15. 88. The Italian courts have been appealed to for a ruling as to the sense of these provisions, and the Court of Cassation, in an, order of 2 March 1978, was of the opinion that there were no principles or standards extending to the above-mentioned subsidiary bodies the rules of substance and procedure of Italian law in the specific area of trade union rights, which the Court considered to be a separate matter with respect to the persons covered and the subject of conditions of employment and work. The question of the representation of civilian personnel with local status is, moreover, covered by the regulations concerning them adopted by the competent authorities of NATO. The Committee does not consider -that it is competent to give any kind of interpretation of the various agreements mentioned above, and accordingly merely takes note of the interpretation placed upon them.

B. B. The Committee's conclusions

1. 89. In consequence of the foregoing considerations, Italy does not have the power to enforce respect for the freedom of association Conventions upon the competent authorities of the abovementioned international organisation. The irreceivability of the communication from FILTAT-CISL is, moreover, formally advanced by the Government. With regard to the imputability of the alleged facts on the part of the subsidiary bodies of NATO themselves it should first of all be stressed that the standing Orders regarding the procedure to be followed in such cases under article 24 of the ILO Constitution (article 3, paragraph 2(d)) - like the procedure in force for the examination of complaints of violation of freedom of association - presuppose that the allegations are made against a State, not against an international body as such. The question nevertheless arises as to whether it is possible to consider that a representation made against an international body may also be considered as being made against all of its constituent States.
2. 90. The problem was examined on the occasion of a representation presented by the World Federation of Trade Unions under article 24 of the Constitution alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), by the States Members of the European Communities (EEC, ECSC and EURATOM). The Committee appointed by the Governing Body to examine this case considered that the representation was irreceivable both in respect of the States concerned which had not ratified Convention No. 111 (owing to the absence of the ratification stipulated by article 24 of the Constitution and article 3 of the above-mentioned Standing Orders) and in respect of those which had ratified it, and stressed in particular that the representation referred to action by the authorities of the European Communities concerning officials of these communities. Quoting the report of a commission appointed under article 26 of the ILO Constitution to examine another complaint the Committee stressed that the obligations resulting from ratification of an International Labour Convention, like all such obligations arising under general international Conventions, are limited to matters arising within the jurisdiction of the party to the Convention upon which the obligation rests. This principle is, moreover, expressly recognised in the English wording of article 24 of the Constitution and article 3, paragraph 2(f), of the above-mentioned Standing orders, which indicates that the representation must allege that the Member has failed to secure the effective observance "within its jurisdiction" of a Convention to which it is a party. On the recommendation of the above Committee the Governing Body, at its 205th Session (February-March 1978) therefore declared the said representation irreceivable as regards form.
3. 91. The Committee on Freedom of Association considers that these conclusions also apply in the present case, the more so as, unlike the case just described, the representation itself is not directed at all the States parties to the treaties setting up the common bodies.