Solicitud directa (CEACR) - Adopción: 1995, Publicación: 83ª reunión CIT (1996)

The Committee takes note of the Government's report as well as of the following legislation: the Constitution of the Republic of Belarus of 1994, the Act on Trade Unions of 1992, the Act of the Republic of Belarus on the Fundamental Principles of Employment in the Public Service of 1993, the Law on the Settlement of Collective Labour Disputes of 1994 and the draft Labour Code of 1994.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. 1. The Committee notes that according to section 2, paragraph 1, of the Act on Trade Unions of 1992 "citizens" have the right to establish trade unions. The Committee considers that the right of workers and employers, without distinction whatsoever, to establish and join organizations implies that any worker or employer residing in the territory of a given State shall benefit from the right of organization provided by the Convention, without any distinction based on nationality (1994 General Survey on freedom of association and collective bargaining, paragraph 63). Noting with interest that the draft Labour Code of 1994 provides that workers and employers without distinction have the right to associate (section 6.1.0-1), it requests the Government to indicate in its next report what measures have in fact been taken to ensure that foreign workers - and in particular residing migrant workers - and employers enjoy the right of association, in accordance with Article 2 of the Convention.

2. The Committee notes that article 36, paragraph 1, of the Constitution of Belarus of 1994 states that "every person shall be entitled to freedom of association" and that article 36, paragraph 2, states that "Judges, employees of the procurator's office, organs of internal affairs (militia), the Accounting Chamber of the Republic of Belarus, organs of state security, and servicemen may not be members of ... public associations which pursue political goals". The Government's report states that "an exception is made" for these categories as regards freedom of association. The Committee of Experts in its General Survey has stated that barring senior public officials from the right to join trade unions which represent other workers is not necessarily incompatible with freedom of association if they are entitled to establish their own organizations and if this category is limited to persons exercising senior managerial or policy-making functions (op. cit., paragraph 57). The Committee would request the Government to provide specific information on whether employees under article 36, paragraph 1, of the Constitution are granted the right of association in line with its above views. Furthermore, the Government is requested to indicate whether the employees of organs of internal affairs, of state security and whether servicemen are, in the Government's view, to be assimilated to members of the police and armed forces (Article 9 of Convention No. 87).

3. Section 6.2.0-6 of the draft Labour Code of 1994 provides that no manager shall be a member of the trade union established with the employer concerned. The Committee considers that provisions which prohibit workers in this category from joining trade unions in which other workers are represented are not necessarily incompatible with the Convention, provided they have the right to establish their own organizations and that the right to belong to those organizations is restricted to persons performing senior managerial or decision-making functions (op. cit., paragraph 66). Therefore the Committee would ask the Government to indicate whether these persons are granted the right of association and supply the relevant provisions, if any.

4. Section 6.2.0-4 of the draft Labour Code of 1994 requires, among others, a union to submit, in order to be registered, a list of members and that it may be denied registration if this list is not "authentic". The Committee considers that formalities covered by the concept of registration may include details of the founding members and of the constituent meeting (op. cit., paragraph 73). The Committee would request the Government to provide information on whether the list of members required for registration concerns the founding members which have confirmed the endorsement of the Charter or concerns all union members.

Article 3. Right of workers' organizations to organize their activities in full freedom. 1. The Committee notes that section 12, paragraph 1, of the Act on the Fundamental Principles of Employment in the Public Service of 1993 stipulates that public service employees may not take part in strikes. In the Committee's view the right to strike may only be curtailed for those "public servants exercising authority in the name of the State". Moreover, if the right to strike is subject to restrictions or a prohibition and workers are thus deprived of an essential means of defending their socio-economic and occupational interests, they should be offered compensatory guarantees, for example conciliation and mediation procedures, leading in the event of a deadlock, to arbitration machinery (op. cit., paragraph 164). The Act on the Fundamental Principles of Employment in the Public Service of 1993 is not specific in this respect. The Committee therefore requests the Government to indicate which compensatory guarantees are afforded to the employees covered by this Act.

2. With reference to its previous comments in relation to the prohibition of strike action in support of political demands (section 18, paragraph 2, of the Act on Trade Unions of 1992) where the Committee recalled that trade unions should have the possibility of recourse to protest strikes aimed at criticizing a government's economic and social policy, the Committee notes that the Government has indicated in its report there is merit in that reasoning and the attention of the legislature has been drawn to the Committee's view. The Committee would ask the Government to ensure that article 18, paragraph 2, of the Act does not prohibit workers' organizations to use protest strike for seeking solutions to economic and social policy positions and other labour problems which are of direct concern to the workers. In the Committee's view, trade unions 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 workers in general (op. cit., paragraph 165). The Committee would request the Government to indicate in its next report the measures taken to ensure the full exercise of the right to strike in line with the principles of freedom of association.

The Committee also notes that the Committee on Freedom of Association has before it a complaint (Case No. 1849) concerning the alleged infringements of trade union rights in Belarus. The Committee will examine any aspects of this complaint touching upon the application of the Convention once the Committee on Freedom of Association has concluded its examination, if it considers it appropriate.