Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s first report. It further notes the relevant provisions of the Constitution of Turkmenistan (2008), the Labour Code (2009), the Law on Public Associations (2003) and the Presidential Ordinance on state registration of projects and programmes of technical, financial, humanitarian assistance and grants and the accompanying rules (2003). The Committee understands that, in the absence of a specific legislation on trade unions and employers’ organizations, the Law on Public Associations is the legislation regulating the establishment, activities and liquidation of such organizations. The Committee notes the Government’s indication that the National Trade Union Centre of Turkmenistan has prepared a draft law on trade unions and requests the Government to provide information in its next report on the current status of the draft legislation, a copy thereof, or a text of the new legislation, if it is adopted before the next reporting cycle.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Foreign citizens and stateless persons. The Committee notes that the Constitution of Turkmenistan, in its article 28, guarantees to every citizen the right to form social associations and, by virtue of article 8, would appear to extend this right to foreign citizens and stateless persons. The Committee further notes that, pursuant to section 398 of the Labour Code, workers have the right to establish and join trade unions. The Committee also notes that, pursuant to section 1(2) of the Law on Public Associations, “citizens create public associations of their own choice and have the right to join such associations on conditions of observance of their own charters”. The Committee requests the Government to indicate whether foreign citizens and stateless persons can establish and join trade union organizations of their own choosing.

Criminal record. The Committee notes that, according to section 18 of the Law on Public Associations, authorities can refuse registration of an organization if one of its founders “has been previously sentenced for a crime, especially a serious crime”. The Committee considers that, with regard to the right of workers to establish their organizations, a law which prohibits establishment of a trade union by a person convicted of a crime is incompatible with such a right, when the activity condemned is not prejudicial to the aptitude and integrity required to establish a trade union organization. The Committee requests the Government to indicate what types of crimes are encompassed in the prohibition stipulated in section 18 of the Law and which would be applicable in the case of establishment of a trade union organization.

Trade union monopoly. The Committee notes that the Government’s report seems to imply that there is only one trade union centre in Turkmenistan and that there are no trade unions outside of that structure. The Committee recalls that Convention No. 87 implies that pluralism should remain possible in all cases. Therefore, the law should not institutionalize a factual monopoly; even in a situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 96). The Committee requests the Government to indicate whether workers can create a trade union organization outside of the National Trade Union Centre of Turkmenistan.

The Committee also requests the Government to provide a copy of the relevant provisions of the Civil Code regulating registration of public associations, including trade unions.

Article 3. Right of organizations to organize their administration without interference by the public authorities. The Committee notes that, according to section 22(3) of the Law on Public Associations, upon a request from the Ministry of Justice, public associations must submit copies of decisions taken by their management committees or office holders and annual and quarterly reports about the association’s activities, as submitted to the taxation authority. According to section 22(4), public associations must inform beforehand the Ministry of Justice about the implementation of important decisions and allow a representative of the Ministry to be present on such occasions. Furthermore, according to section 22(5), a public association must assist a representative of the Ministry of Justice to ascertain whether the association is achieving its authorized purpose(s). The Committee observes that, in so far as these provisions apply to workers’ and employers’ organizations, they give authorities powers of control which go beyond those acceptable under the Convention. In this respect, the Committee considers that the supervision of workers’ and employers’ organizations should be limited to the obligation of submitting periodic financial reports or, if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association); such verification should be limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement, and should not take the form of permanent control by the authorities. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraphs 125 and 126). The Committee therefore requests the Government to take the necessary measures to either amend the Law on Public Associations or to ensure that any specific legislation regulating rights and activities of workers’ and employers’ organizations guarantees the application of this principle. The Committee requests the Government to indicate in its next report the measures taken in this respect.

Right to strike. The Committee notes that the provisions of the Labour Code concerning collective labour disputes do not refer to the right to strike and that the Government provides no information in this regard. The Committee therefore requests the Government to provide a copy of all relevant legislation regulating the right to strike.