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724. 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, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has 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' organizations shall have the right to elect their representatives in full freedom.
(See the Digest of 1985, para. 556.)
725. The principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances.
(See the Digest of 1985, para. 558.)
726. Although the holder of trade union office does not, by virtue of his position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities.
(See the Digest of 1985, para. 77.)
727. The Committee pointed out that one way of ensuring the protection of trade union officials 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.
(See the Digest of 1985, para. 557.)
728. The dismissal of trade unionists for absence from work without the employer's permission, for example, to attend a workers' education course, does not appear in itself to constitute an infringement of freedom of association.
(See the Digest of 1985, para. 554.)
729. According to the findings of a court, one of the essential reasons for the dismissal of a trade union official was that he performed certain trade union activities in his employer's time, using the personnel of his employer for trade union purposes and using his business position to exercise improper pressure on another employee - all this without the consent of his employer. The Committee considered that, when trade union activities are carried on in this way, it is not possible for the person concerned to invoke the protection of Convention No. 98 or to contend that, in the event of dismissal, his legitimate trade union rights have been infringed.
(See the Digest of 1985, para. 559.)
730. In a case in which a trade union leader was dismissed and then reinstated a few days later, the Committee pointed out that the dismissal of trade union leaders by reason of union membership or activities is contrary to Article 1 of Convention No. 98, and could amount to intimidation aimed at preventing the free exercise of their trade union functions.
(See 233rd Report, Case No. 1207, para. 421.)
731. With regard to the reasons for dismissal, the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action.
(See the Digest of 1985, para. 561.)
732. The Committee has drawn attention to Convention No. 135 and Recommendation No. 143 concerning the protection and facilities to be afforded to workers' representatives in the undertaking, adopted by the International Labour Conference in 1971, in which it is expressly established that workers' representatives in the undertaking should enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers' representatives or on union membership, or participation in union activities in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.
(See the Digest of 1985, para. 563.)
733. A deliberate policy of frequent transfers of persons holding trade union office may seriously harm the efficiency of trade union activities.
(See the Digest of 1985, para. 560.)
734. All practices involving the "blacklisting" of trade union officials constitute a serious threat to the free exercise of trade union rights and governments should take stringent measures to combat such practices.
(See the Digest of 1985, para. 564; and 295th Report, Case No. 1732, para. 357.)
735. In a case involving a large number of dismissals of trade union leaders and other trade unionists, the Committee considered that it would be particularly desirable for the government to carry out an inquiry in order to establish the true reasons for the measures taken. (See the Digest of 1985, para. 565.)
736. The Committee has drawn attention to the Workers' Representatives Recommendation, 1971 (No. 143), which recommends, as one of the measures that should be taken to ensure the effective protection of workers' representatives, the adoption of provisions for laying on the employer, in the case of any alleged discriminatory dismissal or unfavourable change in the conditions of employment of a workers' representative, the burden of proving that such action was in fact justified.
(See the Digest of 1985, para. 566.)