Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information contained in the Government’s report. It further notes the adoption of the new Labour Code.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee takes note with satisfaction that the Labour Code of 2002 contains no reference to an imposed trade union monopoly.

The Committee notes that according to section 11 of the Labour Code, restrictions provided for by federal law may apply to managers of organizations, personnel combining jobs, women, persons bearing family responsibilities, youth, state employees and others. It further notes that members of directors’ councils of the organizations (with the exception of members who concluded a labour contract with the organization) and persons whose relationship with an employer is regulated by the civil law contract are excluded from the scope of the Labour Code. Recalling that this Article of the Convention provides that all workers, without distinction whatsoever should have the right to establish and join organizations in the furtherance and defence of their occupational interests, with the sole possible exception being that of armed forces and the police, the Committee requests the Government to indicate whether any restrictions have been imposed on the right to organize of these workers and to provide clarification in respect of those persons considered to be regulated by a civil law contract, who are excluded from the scope of the Code.

The Committee further notes the Government’s indication that a draft federal Law on Associations of Employers is in the process of preparation by the State Duma. The Committee requests the Government to provide a copy of this legislation as soon as it is adopted so that the Committee may examine its conformity with the provisions of the Convention.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee notes the Government’s indication that the Federal Law on the Procedure of Settling Collective Labour Disputes is no longer in force. However, the Committee notes with regret that the new Labour Code does not address the previous concerns of the Committee. Thus, regarding the quorum required for a strike ballot the Committee notes section 410 of the Labour Code, which provides that a minimum of two-thirds of the total number of workers should be present at the meeting and the decision to take a strike should be taken by at least half of the number of delegates present. Considering that the quorum set out for a strike is too high and may potentially impede recourse to strike action, particularly in large enterprises, the Committee requests the Government to amend its legislation so as to lower the quorum required for a strike ballot and to keep it informed of the measures taken or envisaged in this regard.

The Committee further notes that section 410 of the Labour Code maintains the obligation to declare a "possible" duration of the strike, whereas the Committee had previously indicated that requiring workers and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee requests the Government to amend its legislation so as to ensure that no legal obligation to indicate the duration of a strike is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.

Furthermore, the Committee notes section 412 of the Labour Code, which provides that in the event of a disagreement between the parties on the minimum services to be provided in organizations (enterprises) the activities of which ensure safety, health and life of the people, and vital interests of society, the decision is made by an executive body. However, the Committee notes from the Government’s report that minimum services are to be ensured in every sector of activity. In the view of the Committee, the authorities may 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. 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 user’s basic needs are met or that facilities operate safely or without interruption (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 160 and 162). The Committee asks the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and if that is the case, it requests the Government to amend its legislation so as to ensure that such a requirement is limited to the abovementioned cases. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, section 412 provides that the parties to collective bargaining may appeal the decision of the mentioned body to the courts. The Committee, however, considers that it is preferable for such disagreements to be resolved by an independent body in the first place, so as to avoid any possible delay that would be tantamount to a restriction of strike action. The Committee therefore requests the Government to amend its legislation so as to ensure that any disagreement concerning minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive body and to keep it informed of measures taken or envisaged in this regard.

The Committee notes that the right to strike may not be exercised during the period of emergency and in essential services as well as when restrictions are provided for by the federal law. In those cases, the Committee notes that section 413 provides that the decision on collective agreement disputes are made by the Government of the Russian Federation. In this respect, the Committee recalls that, if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned which should provide sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee therefore requests the Government to review its legislation so as to ensure that in those cases any disagreement concerning a collective agreement is settled by an independent body and not by the Government and to keep it informed of measures taken or envisaged in this regard. Furthermore, recalling that restrictions on the right to strike can only be imposed in essential services and in the case of public servants exercising authority in the name of the State, the Committee requests the Government to transmit copies of any federal laws providing for restrictions on strike action.