Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

Labour Code (2006). The Committee recalls that it had previously noted the new Labour Code and raised in its respect the following points.

The Committee had noted section 46(1) of the Code, which provides that an employee’s rights may be limited by the labour contract and requested the Government to indicate how this section is used in practice. The Committee notes the Government’s indication that there is no information on the use of this provision in practice. The Committee once again expresses its concern over the impact this section might have on the exercise of the legitimate trade union rights. It requests the Government to consider amending this section so as to explicitly state that fundamental rights and freedoms at work could not be limited by a labour contract and to keep it informed of the measures taken or envisaged in this respect.

The Committee had requested the Government to clarify the scope of sections 49(1) of the Code, as to indicate whether workers could go on strike regarding interests, disputes or in respect of a violation of conditions of work contained in an existing collective agreement. It further requested the Government to indicate whether recourse to sympathy strikes and to protest strikes was permitted under the new legislation. Finally, in respect of the same section, it requested the Government to specify categories of workers not authorized to participate in the strike. The Committee notes the Government’s indication that workers may go on strike in respect of a violation of conditions of work contained in an existing collective agreement. The Committee recalls that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living. Moreover, workers should be able to take a sympathy strike action (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 165 and 168). The Committee therefore requests the Government to take the necessary measures to review section 49(1) of the Code in light of the above and the basic notion that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their socio-economic interests. The Committee requests the Government to keep it informed of the measures taken in this respect. The Committee notes the Government’s indication that strike action is prohibited in Georgian intelligence services, public security services, Office of the Public Prosecutor, special service of the state security and police.

The Committee had noted section 49(8) of the Code, which provided that a strike could not continue for more than 90 calendar days, and requested the Government to give consideration to appropriate mechanisms of conciliation, mediation or voluntary arbitration instead. The Committee notes the Government’s indication that the tradition of using such methods of dispute resolution is not developed in the country, therefore, providing for such mechanisms in detail in the legislation would be ineffective at the present stage. The Committee notes in this respect that section 49(5) provides that, after the warning strike, the parties shall participate in the amicable settlement procedures pursuant to the Labour Code. The Committee notes, however, that the Code does not provide for such procedure. The Committee considers that no arbitrary periods of limitations should be placed on the right to strike and requests the Government to take the necessary measures to repeal this provision. It further once again suggests to the Government to give consideration to mechanisms of conciliation, mediation or voluntary arbitration instead.

The Committee had requested the Government to amend section 51(2) of the Code, which prohibits strikes in sectors where “work is impossible to suspend due to the technological mode of work”. The Committee notes the Government’s statement that this provision is of a general nature and is not used in practice. The Committee once again recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants exercising authority in the name of the State, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. The authorities may, however, establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). The Committee therefore once again requests the Government to amend section 51(2) of the Code accordingly to the above principle and to keep it informed of the measures taken or envisaged in this respect.

The Committee had requested the Government to amend section 51(4) and (5) of the Code, providing that the strike of employees, informed about termination of the contract before the dispute arises, is illegal and that if the right to strike arises before the termination of the time-based contract, the strike is considered illegal after the expiration of the term of the contract. The Committee notes the Government’s indication that the issue of amending these provisions is being discussed. The Committee requests the Government to keep it informed of any developments in this respect.

The Committee notes that according to section 48(5) of the Code, if, in the course of a dispute, an agreement is not reached in 14 days, one of the parties is entitled to submit the dispute to the court of arbitration. The Committee recalls that a provision which permits either party unilaterally to submit the dispute for compulsory arbitration effectively undermines the right of workers to call a strike. The Committee recalls that recourse to arbitration should be possible only at the request of both parties involved in a dispute, or in cases where strikes may be restricted or banned, i.e. in essential services in the strict sense of the term, in the public service involving public servants exercising authority in the name of the State or in the event of an acute national emergency. The Committee therefore requests the Government to take the necessary measures to amend section 48(5) so as to ensure that recourse to arbitration is limited to the abovementioned situations and to keep it informed in this respect.

Criminal Code. The Committee also notes that according to section 358 of the Criminal Code, violation of strike procedures by an organizer of the strike is punishable by imprisonment for a period of up to two years, if the violation caused grave results by negligence. The Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, both excessive recourse to the courts in labour relations and the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey, op. cit., paragraph 177). In these circumstances, the Committee requests the Government to take the necessary measures to amend section 358 of the Criminal Code by repealing the reference to imprisonment so as to ensure that sanctions for participation or organization of an illegal strike are not disproportionate. It requests the Government to keep it informed of the measures taken or envisaged in this respect.

Law on Trade Unions. The Committee further notes the Government’s indication that while section 5(2) of the Law on Trade Unions forbids trade unions to belong to a political party, it does not prohibit them to express their opinions and criticism on economical and social policies of the Government.