Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 332, Noviembre 2003

Effect given to the recommendations of the Committee and the Governing Body

1. 204. At its June 2003 meeting, the Committee urged the Government to take the necessary measures to amend section 120 of the Labour Relations Act, which gives sweeping powers to the Government to interfere in the running of the affairs of trade unions and asked to be kept informed of developments in this regard.
2. 205. In a communication dated 30 July 2003, the Government maintained that the provision in question protects workers’ funds and properties from being used for non-worker activities. The Government further explained that such provision was only applied once the affected members or trade unions had approached the Government with sound information to warrant an investigation. According to the Government, the current scenario where trade unions are heavily involved in politics makes this position more necessary.
3. 206. The Committee is not convinced by the Government’s explanations and reiterates that the text of section 120 of the Labour Relations Act is incompatible with the provisions of Convention No. 87. The Committee deeply regrets that no progress whatsoever has been achieved in this matter three years after the first examination of the case. Therefore, the Committee is bound to recall its previous recommendations [see 331st Report, paras. 109?110].
4. 207. The Committee recalls once again that section 120 gives rise to two different sets of problems from the standpoint of freedom of association. Paragraphs (a) and (b) of subsection (2) of section 120 authorize an investigator appointed by the Minister to enter trade union premises and question any person employed there at all reasonable times and without prior notice. The Committee has emphasized in this respect that the right of the inviolability of trade union premises necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so and any search of trade union premises, or of unionists’ homes, without a court order constitutes an extremely serious infringement of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 175 and 177]. Moreover, searches of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority where that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the premises material to a prosecution for a penal offence and on condition that the search be restricted to the purpose in respect of which the warrant was issued [see Digest, op. cit., para. 180]. The Committee recalls that paragraphs (a) and (b) of subsection (2) clearly do not respect the principles enunciated above.
5. 208. Secondly, as regards paragraph (c) of subsection (2), which empowers an investigator, at all reasonable times and without prior notice, to inspect and make copies and take extracts from any books, records or other documents on trade union premises, the Committee has previously stated that the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions. Moreover, as regards certain measures of investigations, the Committee has considered that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which hamper a union’s exercise of the right to publicity or the disclosure of information which might be confidential [see Digest, op. cit., paras. 443 and 444]. The Committee notes that the powers of supervision contained in paragraph (c) of subsection (2) are not limited to exceptional cases; rather this provision gives excessive powers of inquiry to the administrative authorities into financial management of trade unions, thereby violating the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities.
6. 209. The Committee strongly urges the Government to amend section 120 of the Labour Relations Act and to keep it informed of developments.