Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Armenia (Ratification: 2003)

Other comments on C098

Observation

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The Committee notes the observations of the Confederation of Trade Unions of Armenia alleging violations of the Convention in practice received on 30 September 2020. The Committee requests the Government to provide its comments thereon.

Article 4 of the Convention. Collective bargaining. The Committee had previously noted that pursuant to sections 23, 25, 45, 55 and 56 of the Labour Code, both trade unions and “workers’ representatives” enjoyed the right to negotiate collective agreements at the enterprise level. Recalling that direct negotiation between the undertaking and its employees, bypassing representative organizations, where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted, the Committee had requested the Government to take the necessary measures to amend its legislation so as to bring it into conformity with the Convention. The Committee notes the Government’s explanation that for the purpose of collective bargaining, a trade union is entitled to represent all workers of an undertaking if this union represents over half of the company’s workers. A collective agreement signed by that union would apply to all workers of the enterprise in question. If a union represents less than half of all workers of an enterprise, it can only negotiate on behalf of its own members. In the absence of a trade union, the representation functions can be transferred to the relevant regional or sectoral trade union. Pursuant to section 23 of the Labour Code, if no trade union exists at an enterprise, or if the existing unions represent less than half of the employees of the undertaking, the staff meeting may elect other representatives. In the latter case, pursuant to section 56 of the Labour Code, the union which represents less than half of all workers of an enterprise bargains collectively through a joint representative body together with other elected representatives. The Government thus considers that there is no need to amend the Labour Code in this respect. The Committee recalls that, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and that negotiation between employers or their organizations and representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. The Committee emphasizes that where there exists a representative trade union and it is active within the enterprise or branch of activity concerned, the authorization for other workers’ representatives to bargain collectively not only weakens the position of the trade union, but also undermines ILO rights and principles on collective bargaining (see the 2012 General Survey on the fundamental Conventions, paragraphs 239–240). The Committee regrets that despite its numerous requests, section 23 of the Labour Code has not been amended. The Committee expects the Government to take immediate action to amend section 23 of the Labour Code and requests it to provide information on any progress made in this regard.

The Committee had previously noted that according to sections 59(4) and 61(2) of the Labour Code, if an enterprise is restructured or privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. Recalling that neither the restructuring nor the privatization of an enterprise should in itself automatically result in the extinction of all the obligations resulting from the collective agreement, and that the parties should in any case be in a position to advocate the application of relevant clauses such as those concerning severance pay, the Committee had requested the Government to amend these provisions accordingly. The Committee notes the Government’s indication that in case of a merger of two or more enterprises into one structure, maintaining a collective agreement would not be possible if all of the enterprises concerned had their own collective agreements, as each legal entity can have only one collective agreement. The Committee notes, on the one hand, that the situation described by the Government is only one of many possible situations covered by the above-mentioned provisions of the Labour Code, which deal with restructuring and privatization in general, and on the other, even in the situation referred to by the Government, a merger between two enterprises should not result in workers automatically losing all rights and guaranties obtained through collective bargaining. The Committee thus considers that before a new collective agreement can be negotiated and signed, the previous agreement shall remain in force. The Committee therefore reiterates its previous request and asks the Government to provide information on the progress made in this respect.

Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements signed and in force in the country and to indicate the sectors and levels concerned as well as the number of workers covered.

The Committee reminds the Government that it can avail itself of the technical assistance of the Office.