Effect given to the recommendations of the committee and the Governing Body - REPORT_NO306, March 1997

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

1. 19. At its meeting in March 1996, the Committee requested the Government to: repeal Order No. 158 of 28 March 1995 to the extent it includes organizations and enterprises not providing essential services as defined by the Committee; implement fully the decision of the Constitutional Court which declared certain articles of Decree No. 336 to be unconstitutional; take the necessary measures, without delay, to ensure the reinstatement in their jobs of all workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995; immediately set up an independent commission of inquiry to clarify all the facts relating to this case and to keep it informed of the conclusions reached by the Procurator of the Republic and the commission of inquiry in this regard (see 302nd Report, para. 222).
2. 20. In its communication of 9 September 1996, the Government indicates that the Constitutional Court considered a petition presented by the Permanent Commission on Social Policy and Labour of the Supreme Council of the Republic of Belarus on 20 June 1996 for an independent examination, with ILO experts, of the compliance of Order No. 158 with the Constitution and the laws of Belarus. According to the Government, the Constitutional Court ruled not to act on the petition and asked the Supreme Council to eliminate, by 15 September 1996, the contradiction between section 16(1) of the Act on the procedures for settling collective labour disputes which provides the list of enterprises where strikes are prohibited and section 13(2) of the same Act which stipulates the notification dates for strikes in those enterprises listed in section 16. Court procedure on the case has been suspended.
3. 21. As concerns the dismissal of workers for having participated in strike action, the Government recalls that the illegal nature of the strikes in question had been recognized by the Minsk City Court of First Instance. It indicates that, on this basis, 15 persons were fired from Gomyel enterprise (trolleybus), five of whom have been taken back into the enterprise and another reinstatement is still under consideration. None of the Minsk Motor Enterprise employees have been re-employed and the Minsk City Executive Council has taken a number of measures to assist those fired at Minsk Metro with employment. In this respect, the Government also provides certain detailed information on court cases for reinstatement which had already been considered by the Committee in its first examination of the case.
4. 22. The Committee notes this information. As concerns the Committee's recommendation to repeal from the list of Order No. 158 those enterprises and industries which it does not consider as essential services, while noting that the Constitutional Court has requested the Supreme Council to eliminate a contradiction between two sections of the Dispute Settlement Act, the Committee regrets that no steps have been taken to amend Order No. 158 to ensure that transport services, such as the Minsk Metro, are not excluded from the right to strike. The Committee therefore urges the Government to take the necessary measures to amend Order No. 158 in this respect and to keep it informed on the progress made in this regard.
5. 23. As concerns the dismissal of workers participating in the August 1995 strikes in Minsk and Gomel, the Committee notes the Government's indication that five persons among 15 dismissed at the Gomel enterprise (trolleybus) have been reinstated. It notes with regret however that none of the other dismissed workers either at Minsk Metro or at Minsk Motor Enterprise have been reinstated and that the Government continues to insist that these dismissals are justified by the fact that the strike action was declared by the court to be illegal. The Committee finds itself obliged therefore to recall that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of whole or part of the population). The Committee has already indicated in the past that transport generally does not constitute an essential service. (See Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 526 and 545.) When last examining this case, therefore, the Committee had come to the conclusion that the strike action in question represented the exercise of legitimate trade union activity. Recalling that there remain 58 workers who were dismissed from Minsk Metro (according to the complainant's initial allegations) and at least ten trolleybus drivers in Gomel, the Committee must once again emphasize that the dismissal of workers for taking part in legitimate strike action constitutes anti-union discrimination in employment and requests the Government to ensure the immediate reinstatement in their jobs of all workers dismissed in connection with these strikes. The Government is requested to keep the Committee informed on the progress made in this regard.
6. 24. The Committee regrets that the Government has not provided any information concerning its recommendation to implement fully the Constitutional Court decision which declared certain articles of Decree No. 336 to be unconstitutional. The Committee finds this all the more disturbing as it has been called upon to examine in this same report another complaint (see Case No. 1885) alleging the continuing implementation of the articles of this Decree which it has already concluded infringe trade union rights. The Committee refers to its previous conclusions concerning Presidential Decree No. 336 in its 302nd Report and calls upon the Government to take immediate steps to revoke those articles of the Decree which interfere with the free exercise of trade union rights, namely articles 1, 2 and 3, and to keep it informed of the progress made in this regard.
7. 25. Finally, the Committee regrets that the Government has not provided any information concerning its recommendation that an independent commission of inquiry be established to clarify the facts relating to this case. While having noted in its previous examination of this case (see 302nd Report, para. 221) that an inquiry was being carried out by the Procurator of the Republic concerning the legality of actions taken by the law enforcement bodies, the Committee had considered that the questions raised by this case went beyond the mandate given to the Procurator. It must therefore request the Government once again to take steps for the immediate establishment of a commission of inquiry, the composition of which would be acceptable to all parties concerned, in order to clarify all the facts relating to this case. It requests the Government to keep it informed both of the conclusions reached as a result of the Procurator's inquiry, as well as of those of the commission of inquiry.