Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 334, Junio 2004

1. 95. The complaint is contained in communications from the Mandate Trade Union dated 7 and 21 May 2002.
2. 96. The Government transmitted its reply in a communication dated 8 October 2002.
3. 97. South Africa has 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).

A. Questions of receivability

1. 98. Before coming to the examination of the substance of this complaint, the Committee wishes to recall the issues of receivability that had been raised in this case.
2. 99. In communications dated 7 and 21 May 2002, the Mandate Trade Union, representing the Irish staff employed in the administrative support section of the South African Embassy in Dublin, submitted a complaint against the Government of South Africa for failure to ensure respect for freedom of association and collective bargaining rights in its Embassy in Ireland.
3. 100. In its reply of 8 October 2002, the Government, while replying to the substantive aspects of the case, also contested the receivability of the complaint, stating that the relationship between an embassy as employer and its locally recruited personnel, at question in the complaint, is governed by the law of the country in which the embassy is situated and emphasizing that neither the South African Constitution, nor the statute law, has application to the employment by an embassy of locally recruited personnel.
4. 101. In the light of the contradictory understandings between the complainant and the Government of South Africa in respect of the country whose jurisdiction would be applicable in this case, the Committee invited the Government of Ireland to indicate whether Irish law indeed governs the employment relationship between locally recruited personnel and the South African Embassy [see 330th Report, para. 9].
5. 102. In a communication dated 5 November 2003, the Irish Government advised that the issue of whether Irish law governs the employment relationship between locally recruited personnel and embassies depends on the nature of the employees’ duties in the embassy. According to the Irish Government, that type of issue was the subject of a decision of the Irish Supreme Court in The Government of Canada v. The Employment Appeals Tribunal and Brian Burke in which the following statement of currently recognized principles of international law was adopted:
   • One must decide whether the relevant act upon which the claim was based should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character ... or whether it should be considered as having been done outside that area and is in the sphere of governmental or sovereign activity.
6. 103. The Supreme Court further held that, if an activity touched the actual business or policy of a foreign government, then sovereign immunity should be accorded to such activity. In this case, which concerned a chauffeur, the Justice held that "the element of trust and confidentiality that is reposed in the driver of an embassy car creates a bond with his employers that has the effect of involving him in the employing government’s public organization and interest".
7. 104. The Irish Government states that it is not clear whether such circumstances apply to the Mandate employees; much would depend on whether or not the duties of the individuals touched upon the business or policy of the foreign government or were invested with an element of trust and confidentiality. If the employment relationships did come within this category, then it is likely that a claim of sovereign immunity would be accepted by an Irish court. It may be, however, that functions performed by one or more of the Mandate employees fall outside the scope of the abovementioned Supreme Court decision, and Irish employment law would be held by an Irish court to apply.
8. 105. In conclusion, the Irish Government states that it is not possible, on the basis of information currently available, to state with certainty whether the employment contract and relationship between the five locally recruited personnel and the Embassy of South Africa would be governed by Irish domestic law.
9. 106. The Committee thus understands from the information communicated by the Irish Government that the contention made by the South African Government that Irish law in this case governs the employment relationship between its Embassy in Dublin and its locally recruited personnel cannot be confirmed on the basis of the information available. While the question of whether Irish national law applies to the locally recruited personnel in a given embassy is dependent on a variety of circumstances that can only be determined on a case-by-case basis, the application of the fundamental international principles of freedom of association embodied in the ILO Constitution and the Declaration of Philadelphia are applicable to all member States.
10. 107. In view of the above principle which binds ILO member States, it would be anomalous to abandon the locally recruited personnel in this case at the international level merely because of an ambiguous situation relevant to the application of national law. Thus, while the national laws applicable to the locally recruited personnel have yet to be determined, the Committee, in the interests of justice, may look to the authority relevant to the employer, the South African Embassy, which in this case is clearly the Government of South Africa in light of the uncontested sovereignty it maintains over its government officials and employees representing it around the world.
11. 108. The Committee therefore considers that, if there has been a violation of international labour standards or principles relative to freedom of association and collective bargaining in this case, it is the South African Government that is most assuredly in a position to take the necessary measures to address such a violation. The Committee thus concludes that the complaint is receivable and will now proceed with its analysis and examination of the substantive issues concerned.

B. The complainant’s allegations

1. 109. In its communications dated 7 and 21 May 2002, the Mandate Trade Union alleges that South Africa has failed to secure the effective observance within its jurisdiction, and specifically within its Embassy to Ireland, of ILO Conventions Nos. 87 and 98.
2. 110. Irish staff employed at the Embassy of South Africa in Dublin had decided that, because of certain concerns and claims they wished to make regarding their terms and conditions of employment, and also regarding the particular management style of the Ambassador, that they needed union protection. They joined the local Mandate Trade Union and thereafter the union approached the Embassy to enter into a collective bargaining arrangement.
3. 111. A meeting was requested with the Ambassador by letter dated 25 October 2001 [attached to the complaint]. The Embassy advised the union by letter dated 29 November 2001 that it was not intended to recognize the union [also attached to the complaint]. It was stated, inter alia, that: "... it is not the policy of the Embassy to negotiate or work through a third party, in relation to issues of labour relations". Thus, the Embassy declined to recognize or deal with the Mandate Trade Union.
4. 112. Subsequently, the Embassy was given official notice of strike action, planned from 10 January 2002. Following some discussion between the Embassy and the Mandate Trade Union, it was decided to defer industrial action by 24 hours. This was in order to facilitate a proposal by the union that both parties would attend conciliation at the Labour Relations Commission.
5. 113. On 10 January 2002, the Embassy had not agreed to mediation. A staff meeting was called and staff were presented with a memo from the Ambassador dated 9 January 2002. In the absence of agreement by the Embassy to conciliation, the strike commenced on 11 January 2002.
6. 114. A further intervention was made by the Assistant General Secretary of the Irish Congress of Trade Unions, to the effect that an independent person would be appointed by agreement to recommend a process whereby the dispute could be resolved but this too was rejected by the Embassy. A detailed submission concerning the dispute and the recognition issue was made to the Director-General, Foreign Affairs, in Pretoria on 18 December 2001.
7. 115. The Mandate Trade Union submits that by their actions in refusing to meet with the union, the Embassy of South Africa and the Government of South Africa are actively preventing the trade union from exercising its right to negotiate with the employer on behalf of the union members, in breach of ILO Convention No. 87 and in particular Article 3(2), Article 8(2) and Article 11 thereof.
8. 116. The Mandate Trade Union further submits that the Embassy of South Africa and the Government of South Africa are in breach of ILO Convention No. 98 and in particular Articles 3 and 4 thereof. The Mandate Trade Union contends that whereas Convention No. 98 does not apply to "public servants engaged in the administration of the State", the trade union members involved in this dispute are not so excluded in view of the nature of their employments in the administrative support section of the Embassy in Dublin. The complainant submits that the Embassy and the Government of South Africa have directly intervened to prohibit negotiations in respect of matters relating to conditions of work, contrary to the provisions of Convention No. 98.
9. 117. Furthermore, the workers in dispute believe that they are being discriminated against since South African diplomatic staff at the Embassy (for example the Foreign Assistant and the Head of Management), with whom they are working side by side, are trade union members. The complainant therefore requests the Committee to assist in ensuring that the Embassy/South African Government comply fully with the obligations placed on them by the ILO.

C. The Government’s reply

1. 118. In its communication dated 8 October 2002, the Government states that the Embassy employs both South African nationals and locally recruited personnel (the "LRP"). Five of the LRP are members of the complainant trade union which has made a request to the Embassy that it be formally recognized as the collective bargaining representative of these employees for purposes of discussing issues relating to remuneration and the conditions of service.
2. 119. On 29 November 2001, the Ambassador responded that:
   • Due to its diplomatic status and the nature of its activities, it is not policy of the Embassy to negotiate or work through a third party in relation to issues relating to labour relations.
   • However, the Embassy is most open to direct discussion between its management and its locally recruited personnel relating to personnel issues.
   • In the pursuit of improving employer-employee relations, the Embassy would be most willing to set up a personnel forum within the Embassy, which could serve in the Platform for dealing with such matters.
3. 120. The relationship between an embassy as employer and its LRP is governed by the law of the country in which the embassy is situated. In terms of the relevant Irish procedures, the trade union processed a dispute and later embarked on strike action to compel the embassy to grant recognition to their trade union. In terms of Irish law, there is no legal obligation upon an employer to grant recognition to a trade union.
4. 121. While the union alleges that the Embassy and the Government of South Africa are in breach of Convention No. 87, in particular Articles 3(2), 8(2) and 11, and Convention No. 98, in particular Articles 3 and 4, the Government asserts that the language of the two Conventions shows that neither Convention is applicable to the current situation and that South Africa has not violated their terms. Accordingly, the complaint is without substance and should be rejected as it contains no allegation which, if proved, would amount to a violation of either of the Conventions.
5. 122. According to the Government, the complaint in respect of Convention No. 87 must fail because the conduct complained of (failure to recognize a trade union) does not concern the rights and freedoms guaranteed by the Convention. The Embassy has not interfered with, restricted or impeded the union’s right to lawfully exercise the four basic rights guaranteed by Article 3 of Convention No. 87, namely, the right to draw up their constitution and rules, elect representatives, organize administration and formulate their programmes without interference from public authorities. Nor has the Embassy applied the "law of the land" as contemplated by Article 8(2) to impair the guarantees provided in the Convention. Firstly, the Convention does not guarantee trade union recognition. Secondly, in refusing to recognize the complainant trade union, the Embassy has not acted contrary to the laws of Ireland. With respect to Article 11, the Embassy and the Government has in no way acted to impede the right of its employees who are members of the complainant trade union to freely exercise the right to organize.
6. 123. The Government further asserts that Convention No. 98 has no application to the present situation. Article 3 requires that countries establish appropriate machinery for ensuring respect for the right to organize. Article 4 requires that countries take appropriate measures to encourage and promote machinery for voluntary negotiation between employers and employees. An employer’s refusal to recognize a trade union, particularly in circumstances in which there is no legal obligation to grant trade union recognition can never constitute a violation of Convention No. 98.
7. 124. Finally, the Government refers to references in the complaint to South African legislation, and asserts that this is entirely irrelevant as neither the South African Constitution nor statute law has application to the employment by an embassy of LRP. In conclusion, the Government affirms that it has not violated in any way Conventions Nos. 87 and 98 and the complaint should accordingly be rejected.

D. The Committee’s conclusions

1. 125. The Committee notes that the allegations in this case concern the refusal of the South African Embassy to Ireland to meet and negotiate with the complainant who represents the locally recruited personnel. While the union had requested a meeting with the Ambassador by a letter dated 25 October 2001, the Embassy advised one month later that it did not intend to recognize the union as it was not its policy to negotiate or work through a third party in respect of labour relations. The Embassy did indicate, however, that it was open to direct discussion between its management and its locally recruited personnel relating to personnel issues. Attempts by the complainant to have the matter resolved by mediation and conciliation were refused by the Embassy.
2. 126. There is no contention between the complainant and the Government as to these facts. The disagreement concerns whether non-recognition of the complainant was a violation of international labour standards and principles concerning freedom of association.
3. 127. Referring to Irish law, the Government states that there is no obligation upon an employer to grant recognition to a trade union. Furthermore, the Government argues that Convention No. 87 does not concern union recognition and that, on the other hand, the Embassy has not in any way interfered with the rights of the locally recruited personnel to organize, draw up their constitutions and rules, elect representatives and organize their administration and formulate their programmes. As concerns Convention No. 98, the Government contends that an employer’s refusal to recognize a trade union, particularly in circumstances in which there is no legal obligation at the national level to grant trade union recognition, is not a violation of the provisions of the Convention. As for the complainant’s references to South African law, the Government considers that these are entirely irrelevant arguing that neither the South African Constitution nor the statute law is applicable to employment of locally recruited personnel by an embassy.
4. 128. The Committee would first recall that the issue at hand is not which national law is applicable to the locally recruited personnel at the South African Embassy to Ireland (a question for which, according to the Irish Government, there is not a clear and definitive answer at present), but rather whether the actions at issue are contrary to international standards and principles of freedom of association.
5. 129. Within this framework, the Committee requests the Government to indicate the actual duties of the five locally recruited personnel at the South African Embassy in Ireland who are members of the complainant trade union.
6. 130. The Committee nevertheless recalls that Conventions Nos. 87 and 98 are applicable to locally recruited personnel. In the first instance, Article 2 of Convention No. 87 sets forth the right of all workers, without distinction whatsoever (with the sole possible exception of the police and the armed forces under Article 9) to form and join organizations of their own choosing. As for Convention No. 98, at no time does the Government contend that the employees in question, stated to be in the administrative support section, are excluded under Article 6, and even the Government’s own assertion that these locally recruited staff are covered by Irish rather than South African legislation, would confirm that they are not deemed to be public servants engaged in the administration of the State.