Rapport intérimaire - Rapport No. 78, 1965

1. 140. The present case has already been examined by the Committee (at its 33rd Session in February 1963) and was the subject of an interim report which appears in paras. 110-124 of the Committee's 69th Report (adopted by the Governing Body at its 154th Session, March 1963). After the examination which it then undertook the Committee reached definitive conclusions on the whole case excepting one particular point on which it was considered necessary to ask the Government for additional information. Having examined the case again at its 35th Session in November 1963 the Committee submitted to the Governing Body a second interim report, which may be found in paras. 145-158 of the 72nd Report of the Committee. As approved by the Governing Body at the 157th Session (November 1963) that report contained definitive conclusions on one aspect of the allegation which had remained pending, but asked the Government for still more information on several other points.

A. A. The complainants' allegations

1. 141. One of the complainants' allegations was that on 1 September 1962 the management of the Joint Bus Receipts Fund (K.T.E.L.)-a public body to which both bus employers and employees engaged in urban transport services belong-brought about the dismissal of 47 conductors (mostly officers or leading members of the Piraeus Bus Conductors' Association) on the ground of " anti-national activity " and in pursuance of Act No. 516 of 1948, through the recruitment committee responsible for hiring, retaining in their posts and dismissing bus conductors and drivers in accordance with section 17 of Legislative Decree No. 3990 of 1959.
2. 142. The complainants stated that these dismissals had occurred following four stoppages of two hours each carried out under the leadership of the Piraeus Bus Conductors' Association on 17 and 27 August 1962 as a protest against reduction of the wage allowance in respect of dependent children and the failure of the management of the K.T.E.L to pay wages.
3. 143. When it examined this aspect of the case during its session of February 1963 the Committee noted that, of the 47 persons alleged to have been dismissed, 28 were named by the complainants and that, of those 28 persons, 19, whose titles and functions were specified, were trade union leaders.
4. 144. In these circumstances the Committee, noting that the Government's reply did not refer to the specific cases of dismissal mentioned by the complainants, recommended that the Governing Body should request the Government to state whether the persons named in the complaint had been dismissed, and if so to explain for what precise reasons.
5. 145. When it re-examined the case at its session in November 1963 the Committee considered-in the light of the explanation given by the Government-that it could dispose of the case of one of the 19 persons named by the complainants (it was explained that this person had not been reclassified in the K.T.E.L because he did not satisfy the required conditions, and not because of any trade union activities in which he may have been engaged).
6. 146. With regard to the 18 other trade union leaders mentioned in the complaint, however, the Government's observations of 24 August 1963 merely state that they were not reclassified " because they did not meet the standards laid down by the Legislative Decree " (honesty, discipline, diligence, attitude towards passengers).
7. 147. In several previous cases the Committee has emphasised that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment (such as dismissal, transfer or other prejudicial acts) and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their duties as such in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has pointed out that one way of ensuring such protection is to provide that these officials may not be dismissed either during their period of office or for a certain time thereafter, except, of course, for serious misconduct. The Committee also considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom.
8. 148. In view of the importance of the above-mentioned principles, and since the dismissals (or refusals to reclassify workers) seem to have taken place after stoppages of work and to have been aimed against the leaders of the organisation which called those stoppages, the Committee, noting that the Government's observations do not reply to the Governing Body's questions as to " the precise reasons " for the action taken against the persons concerned, recommended the Governing Body to repeat its request to the Government to furnish the information previously requested, together with the fullest details.
9. 149. The above recommendation having been approved by the Governing Body, the request for additional information was sent to the Government by letter from the Director-General dated 19 November 1963. The Government replied by letter dated 20 July 1964.
10. 150. First of all the Government's reply indicates that when the action complained of was taken only three of the 18 persons mentioned were officers of the Piraeus Bus Conductors' Association, or were made officers subsequently.
11. 151. The Government then goes on to state that, according to the inquiry made on the subject, none of the persons who were not reclassified was dismissed because of trade union membership or activity; the reasons were that in the exercise of their function they had failed to meet standards of personal integrity and application and had been subjected to disciplinary action; in one case insufficient education was the reason (all these grounds being specified in section 17 (3) of Legislative Decree No. 3990 of 1959 or section 3 (5) of the Legislative Decree of 25 June 1956 concerning K.T.E.L staff regulations).
12. 152. The Government continues to the effect that none of the persons concerned invoked, as they could have done, the protective clause contained in Law No. 1803 of 1951, section 1, which provides that the contract of employment of an employee who is a trade union officer may not be cancelled during his term of office as such, or during the following year, save on a serious ground and in accordance with a procedure defined in the law; but that five of the persons in question have appealed to the Council of State for reversal of the decision not to reclassify them; and that the matter is still sub judice.
13. 153. It appears from the Government's reply that 13 of the 18 persons mentioned did not use the review procedure which was open to them. When encountering such a situation in the past the Committee has felt that, having regard to its particular responsibilities, it cannot be considered as bound by the rules which apply, for instance, to international courts of arbitration, under which national review procedures must first have been exhausted. However, it has also considered, when examining the merits of a case, that if the possibilities offered by national law of recourse to an independent body affording all the necessary safeguards have not been fully used, it must take that fact into account.
14. 154. In this particular instance, noting that the 13 persons directly concerned did not invoke Law No. 1803 of 1951 (protection of trade union officers) before the courts and that unlike five others in the same situation-they abstained from appealing to the Council of State, the Committee considers that the said 13 persons have not really tried to obtain redress of the wrong which they regard themselves as having suffered, and therefore recommends the Governing Body to decide that their cases do not call for further examination.
15. 155. There remain the five persons who have appealed to the Council of State, namely Messrs. Evangelatos, Rovatsos, Kalogerinis, Coukios and Vengelakos. Their case is still before the Council.
16. 156. In previous cases the Committee has followed the practice of not proceeding to examine matters which were the subject of pending judicial proceedings, provided that these proceedings were attended by proper guarantees of due process of law, where the pending judicial proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded.
17. 157. In the present case, also, the Committee considers that it should follow the same procedure and recommend the Governing Body to request the Government to be good enough to communicate information as to the results of the proceedings brought before the Council of State by the persons mentioned in paragraph 155 above, and, in particular, to furnish the text of the Council's judgment and the reasons adduced, and in the meantime, adjourns the examination of this aspect of the case.