Observación (CEACR) - Adopción: 2006, Publicación: 96ª reunión CIT (2007)

The Committee notes the information contained in the Government’s reports, the conclusions of the Committee on Freedom of Association in its review of the measures taken by the Government to implement the recommendations made by the Commission of Inquiry (341st Report, approved by the Governing Body at its 295th Session), including the report of the mission carried out in Belarus in January 2006 in response to the requests made by the Conference Committee on the Application of Standards in June 2005, and the discussion that took place in the Conference Committee on the Application of Standards in June 2006. The Committee further notes the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention in law and in practice. Finally, the Committee notes from the Government’s report that consultations relating to the recommendations of the Commission of Inquiry were held in Geneva in October 2006 between a high-level delegation from Belarus (including the Deputy Prime Minister) and officials of the ILO (including the Executive Director for Fundamental Principles and Rights at Work, the Director and Deputy Director of the Standards Department) and representatives from the International Confederation of Free Trade Unions (ICFTU) and the International Organisation of Employers (IOE).

The Committee recalls that all of its outstanding comments have raised issues directly relating to the recommendations of the Commission of Inquiry. It further observes the conclusions of the Conference Committee wherein it deplored the fact that nothing the Government had said demonstrated an understanding of the gravity of the situation investigated by the Commission of Inquiry or the necessity of rapid action to redress the effects of these severe violations of the most basic elements of the right to organize.

Article 2 of the Convention. The Committee recalls that in its previous comments it had urged the Government to take the necessary measures to amend Presidential Decree No. 2 on some measures for the regulation of activities of political parties, trade unions and other public associations and its accompanying rules and regulations, as concerns the legal address requirement and the minimum membership requirement of 10 per cent of workers at enterprise level for enterprise trade unions, and to disband the Republican Registration Commission, so as to bring the Decree and its application into conformity with the provisions of the Convention.

The Committee notes with interest that, on 6 October 2006, the President of the Republic of Belarus signed into force Presidential Decree No. 605 on certain issues of state registration of public associations and their unions (confederations), which abolishes the Republican Registration Commission. It further notes that responsibility for registration now lies with the Ministry of Justice, Departments of Justice of the regional executive councils and the Minsk City Executive Committee. The Committee trusts that the process of registration before such bodies is a mere formality and that the manner in which these bodies carry out their duties does not amount, in practice, to a requirement of previous authorization contrary to Article 2 of the Convention. The Committee therefore requests the Government to keep it informed of the manner in which registration is carried out by these authorities, as well as any practical obstacles noted in relation to the right of workers to form and join organizations of their own choosing.

The Committee further notes that Presidential Decree No. 605 refers to the preparation by the Council of Ministers of a draft law aimed at implementing the provisions of the Decree. In particular, the Government has referred in its reports to the preparation of a conceptual framework for a draft law on trade unions. This conceptual framework refers to the possibility of establishing two types of trade unions, those with legal personality and those without. The requirement of obtaining a legal address and the 10 per cent minimum membership requirement would not have to be fulfilled by trade unions without legal personality. According to the Government, drafting of this law and its submission is planned for 2007. The Committee recalls in this regard that, in its previous comments under Convention No. 98, it had noted that trade union representatives had been invited from both the Federation of Trade Unions of Belarus (FPB) and the Congress of Democratic Trade Unions (CDTU) to participate in an expert advisory group, the Council for the Improvement of Legislation in Social/Labour Spheres created to consider the following questions: what form of contract should be used for workers in Belarus and conceptual approaches for improving the Law on Trade Unions. The Committee had noted at the time comments made by the CDTU with respect to a number of proposed amendments to the Law on Trade Unions, which it considered would lead to the dissolution of independent trade unions and the establishment of a state-controlled trade union monopoly. The Committee expresses the firm hope that the conceptual framework and the future proposed Bill on trade unions will be further developed in full consultation with all the trade unions concerned and that the final Law will be in full conformity with the provisions of the Convention.

While noting that the Government now proposes the elimination of the above two obstacles to trade union registration for unions without legal personality, which would simply be placed in the register, the practical distinction in Belarus between trade unions with and those without legal personality is not sufficiently clear to the Committee. The Committee recalls that, when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of organizations, the conditions for acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 (see 1994 General Survey on freedom of association and collective bargaining, paragraph 76). The Committee therefore requests the Government to provide full details on the envisaged distinction between unions with legal personality and those without, as well as on the impact that this distinction would have upon the functioning of trade unions.

The Committee further notes with deep concern from the conceptual framework that the Government is envisaging an approach in the draft law on trade unions to provide that, where a trade union or a primary-level organization established at an enterprise represents 75 per cent of the workers at the enterprise and has already signed a collective agreement with the employer, no other primary-level organization shall be included in the register. The Committee recalls that, at present, primary-level organizations (unions created at the enterprise level by a higher level trade union organization in accordance with the by-laws of that organization) may be established without submitting a legal address or meeting a minimum membership requirement other than that stipulated in the higher level organization. The new approach being introduced is likely to have a serious impact not only on the existence of these primary-level organizations, but also on the ultimate existence of their corresponding republican-level organization, giving rise to a de facto monopoly of workers’ representation. The Committee therefore urges the Government to abandon this approach and to ensure that the new law on trade unions will fully and truly ensure freedom of association and the rights of all workers to form and join the organization of their own choosing, whether through the traditional primary-level organizations or enterprise level unions.

In addition, the Committee notes that the conceptual framework refers to the determination of representative capacity of trade unions which will further enable those unions to acquire additional rights in respect of collective bargaining, control over observance of labour legislation, social protection, housing relations, environmental protection, receiving and disseminating information, participation in decision-making and protection of labour rights, as well as facilities, including the free use of premises, equipment, means of transportation and communication necessary for their activities and transfer of buildings, etc., for the organization of leisure, cultural, educational and recreational activities. The Committee considers that the extent of such privileges to representative unions could unduly influence the choice of organization by workers and compromise the right of workers to establish and join organizations of their own choosing (see 1994 General Survey, paragraphs 98 and 104). The Committee further considers that the granting of such extensive privileges to representative unions combined with the uncertainty around the status that may be obtained by unions without legal personality could give rise to undue influence on the choice made by workers of the organization they wish to join. The Committee therefore requests the Government to ensure that the privileges provided to representative trade unions do not give them an unfair advantage over other trade unions such as to render the right to form and join organizations of one’s own choosing meaningless.

The Committee requests the Government to transmit a copy of the draft trade union law as soon as it has been finalized so that it may assess its conformity with the Convention.

Finally, the Committee recalls from the conclusions of the Committee on Freedom of Association that no progress had been made in respect of the Commission’s recommendations to register the primary-level organizations that were the subject of the complaint. In its previous comments under Convention No. 98, the Committee had further noted from the 339th Report of the Committee on Freedom of Association with concern that the spillover of non-registration of these primary organizations had led to the denial of registration of three regional organizations of the Belarusian Free Trade Union (BFTU) (organizations in Mogilev, Baranovichi and Novopolotsk-Polotsk) and had impacted upon their collective bargaining rights. Now, the Committee must further note with concern that the Radio and Electronic Workers’ Union (REWU) had suffered additional refusals to register its primary-level organizations (see 341st Report, paragraph 49). The Committee therefore expresses the firm hope that the Government will take all necessary measures for the immediate re-registration of these organizations both at the primary and the regional level so that these workers may exercise their right to form and join organizations of their own choosing without previous authorization.

Article 3 of the Convention. The Committee recalls that, in its previous comments, it had urged the Government to take the necessary measures to amend the Law on Mass Activities (as well as Decree No. 11 if it had not yet been repealed), so as to bring it into line with the right of workers’ and employers’ organizations to organize their activities. It further requested the Government to indicate the measures taken to amend sections 388, 390, 392 and 399 of the Labour Code and to ensure that National Bank employees may have recourse to industrial action, without penalty. Finally, the Committee urged the Government to provide full particulars on the steps taken, in accordance with the Commission’s recommendations, to declare publicly that acts of interference in internal trade union affairs are unacceptable and will be sanctioned and to issue instructions to the Prosecutor-General, the Minister of Justice and court administrators so that any complaints of external interference made by trade unions are thoroughly investigated.

The Committee notes with regret the Government’s indication that no amendment has been adopted in respect of the Law on Mass Activities. It further regrets that, rather than indicating the measures envisaged in this respect, the Government has called into question the relevance and clarity of the recommendations of the Commission of Inquiry. In this regard, the Committee must recall that it has been asking for the amendment of relevant provisions on mass activities since 2001. At that time, the Committee had asked the Government to amend Presidential Decree No. 11, a Decree that was superseded by the present Law on Mass Activities, in respect of the possibility of dissolution of a trade union in the event that an assembly, demonstration or picketing action resulted in the disruption of a public event, the temporary termination of an establishment’s activities or disruption of transport, given the extreme gravity of such measures and recalling that restrictions on pickets should be limited to cases where the picketing ceases to be peaceful. While noting the Government’s reiteration that the sanction of dissolution can only occur by court order and that it may be appealed, as well as the fact that this section has never been used to this end, the Committee must recall that the provisions of the Law on Mass Activities that allow for a decision for the dissolution of a trade union if the gathering, meeting, demonstration or picket causes important damage or substantial harm (defined to include temporal termination of activity of establishments or violation of transport traffic) is not in conformity with the right of workers to organize their activities and programmes free from interference by the public authorities. In addition, in its previous comments, the Committee had noted with concern the Commission’s findings on the practical application of the Law on Mass Activities, in particular that the authorities routinely and unilaterally changed the venue requested for a demonstration to an obscure and unfrequented location, thus rendering meaningless any right to demonstrate. The Committee therefore once again asks the Government to take the necessary measures to ensure that the Law is amended, including by the deletion of any references to dissolution, so that restrictions on pickets are limited to cases where the action ceases to be peaceful or results in a serious disturbance of public order and that any sanctions imposed in such cases be proportionate to the gravity of the violation. The Committee also asks once again the Government to indicate the measures taken to amend sections 388, 390, 392 and 399 of the Labour Code and to ensure that National Bank employees may have recourse to industrial action, without penalty.

As regards the issuance of a public declaration clearly indicating that acts of interference in internal trade union affairs would not be tolerated and instructions to be given to the Prosecutor-General, the Minister of Justice and court administrators to thoroughly investigate complaints by trade unions, the Committee notes the Government’s references to the separation of powers and the existence of adequate legislation in this regard. The Government adds, however, that such issues are raised within the framework of the inter-departmental group established to coordinate the work on implementation of the recommendations, which includes the President of the Supreme Court and the Deputy General Prosecutor. Finally, the Government refers to specific planned activities, including a seminar for judiciary and prosecution employees aimed at acquainting them with ILO standards on freedom of association, to which the ILO is invited to participate. The Committee notes this information and expresses the firm hope that all measures will be taken to publicly condemn any acts of interference by the public authorities in the internal activities of trade unions and that full dissemination of information relating to the Commission of Inquiry recommendations and the provisions of the freedom of association Conventions will take place through all possible means, including seminars for the judiciary and prosecution employees with the participation of the ILO.

As regards its previous request to the Government not to interfere in the choice of union representatives on trade union bodies, the Committee firstly notes with regret from the 341st Report of the Committee on Freedom of Association that, rather than refraining from such interference, the Government took no steps to restrain a FPB initiative to establish a minimum membership requirement for the National Council on Labour and Social Issues (NCLSI) that resulted in eliminating the seat that had existed for the CDTU, and even voted for the proposed change to the Rules of the National Council in November 2005 (see 341st Report, paragraph 44). The Committee notes from the Government’s reports that measures had also been taken in the Rules to ensure that non-representative unions could participate in the discussions and receive documents, but considers that the situation created by the Rules gives rise to further reinforcing the monopoly voice of the FPB contrary to the considerations of the Commission of Inquiry that “significant steps be taken in the immediate future to permit trade unions that are outside the FPB structure to be able to form their organizations and exercise their activities freely” (see Trade Union Rights in Belarus: Report of the Commission of Inquiry appointed under article 26 of the ILO Constitution, paragraph 634). The Committee does note, however, from the latest information provided by the Government that the FPB put forward a proposal to offer one of its 11 seats to the CDTU and that, according to the Government this proposal was endorsed by the Government, and employer sides and formalized in a resolution of the NCLSI. The Committee requests the Government to transmit a copy of this resolution with its next report.

Articles 3, 5 and 6 of the Convention. In its previous comments, the Committee once again urged the Government to amend section 388 of the Labour Code, which prohibits strikers from receiving financial assistance from foreign persons, and Decree No. 24 concerning the use of foreign gratuitous aid, so that workers’ and employers’ organizations may effectively organize their administration and activities and benefit from assistance from international organizations of workers and employers. The Committee notes the Government’s indication that these restrictions are a matter of principle since the Government considers that strikes are used for political aims and that they are an extreme means of action, which are disruptive for workers and the economy in general. The Government adds that the receipt of such financial assistance from abroad places the other party in an unequal position and could be used as a means of unfair competition in a globalized economy. The Government adds that the provision in the Decree for dissolution of a trade union in case of violation has never been used and thus it cannot be claimed that the Decree hinders legal trade union activities. Finally, the Government states that it needs clarification as to the difficulties in application of the Convention arising from Decree No. 24.

In this respect, the Committee regrets that it is obliged to recall that it has been raising the problems of conformity of section 388 of the Labour Code and Decree No. 8 (superseded by similar provisions in Decree No. 24) since 2000 and 2001, respectively. While taking due note of the Government’s arguments that it fears that, allowing the use of financial assistance from abroad for industrial action would upset the balance of power and could be used for political aims, the Committee must recall that the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87 and, as regards the concerns raised over possible political aims, that organizations 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 (see 1994 General Survey, op. cit., paragraphs 151 and 165). In addition, the Committee does not consider that the fact that the dissolution provision has not been used can lead to the conclusion that trade union activities have not been hindered, as the mere existence of this prohibition and its legal consequences are sufficient to hinder trade unions from using financial assistance in this manner. The Committee must therefore reiterate that restrictions on the use of foreign aid for legitimate trade union activities is contrary to the right of national workers’ and employers’ organizations to receive financial assistance from international workers’ and employers’ organizations in pursuit of these aims and once again request the Government to take the necessary measures to amend both Decree No. 24 and section 388 of the Labour Code so that workers’ organizations are not prohibited to use such aid to support industrial action or any other legitimate activity.

The Committee considers that the current situation in Belarus remains far from ensuring full respect for freedom of association and the application of the provisions of the Convention and is particularly concerned about the impact that the proposed law on trade unions may have on the possibility of trade union pluralism. Noting the indications made by the Government in its report that it would like to receive technical assistance from the Office, the Committee expresses the firm hope that the Government will use such assistance so as to take the necessary steps for the full implementation of the recommendations of the Commission of Inquiry and to ensure that any new legislation in the field of trade union rights is in full conformity with the provisions of the Convention.

The Committee further requests the Government to respond to the comments made by the International Trade Union Confederation (ITUC) dated 9 November 2006.

[The Government is asked to supply full particulars to the Conference at its 96th Session.]