Informe provisional - Informe núm. 325, Junio 2001

government interference in trade union activities

• and dismissal of trade unionists
  111. 111 The Committee already examined the substance of this case at its March 2001 meeting, when it presented an interim report to the Governing Body [324th Report, paras. 133-218, approved by the Governing Body at its 280th Session (March 2001)]. The Federation of Trade Unions of Belarus (FPB) submitted additional information in respect of the complaint in a communication dated 28 March 2001 and the Belarus Automobile and Agricultural Machinery Workers’ Union (AAMWU) and the Agricultural Sector Workers’ Union (ASWU) supplemented their allegations in communications dated 30 March and 26 April 2001, respectively. The Belarusian Free Trade Union (BFTU) transmitted a communication dated 23 March 2001 in which it alleges various denials of trade union rights at an enterprise.
  112. 112 The Government had transmitted additional information in reply to some of the new allegations in a communication dated 23 February 2001 and has forwarded further information in a communication dated 13 April 2001.
  113. 113 Belarus has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 114. At its March 2001 session, the Governing Body approved the following recommendations in the light of the Committee’s interim conclusions:
2. (a) Given in particular the potentially serious consequences of non-registration (banning of activities and liquidation), the Committee considers that Presidential Decree No. 2 on some measures on the regulation of activity of political parties, trade unions and other public associations, as it is currently applied, constitutes a violation of freedom of association. The Committee therefore requests the Government to exclude trade unions either from the entire scope of the Decree’s application (if necessary, instituting a more simplified registration process), or from the excessive restrictions in the Decree, particularly in respect of large enterprises, requiring 10 per cent minimum membership requirement at the enterprise level and the last two subsections of section 3 concerning the banning of activities of non-registered associations and their liquidation, so as to ensure that the right to organize is effectively guaranteed. As concerns the application of the notion of legal address under the Decree, the Committee notes that the Government is considering amendments to the legislation in force so as to eliminate the obstacles to registration caused by this requirement and requests the Government and the complainants to provide additional information as to the practical resolution of the difficulties for registration encountered by the complainants.
3. (b) As regards the specific allegations concerning the practical application of Presidential Decree No. 2, the Committee requests the Government to provide detailed information on the status of the following organizations: OAO “Steklozavod Oktiabr” (Mogilev region); the Minsk Automobile Plant Free Trade Union of Metalworkers; the “Tsvetron” Plant Free Trade Union of Metalworkers (Brest); the local organization of “Khimvolokno” (Grodno); the Belarusian Free Trade Union at the Grodno Fine Fibres Production Amalgamation; the local organization of the Minsk Instrument Engineering Plant; the Free Trade Union of the Byelorussian “Zenith” Plant (Mogilev); Mogilev Construction Trust No. 12; Flax Processing Plant (Orsha); Companies “Electroseti” (Orsha); “BelVar” (Minsk); “Naftan” Production Amalgamation (Novopolotsk); “Avtogydrousilitel” Plant (Borisov); Production and Technical Association “Shveinik” (Borisov); Free Trade Union of the Workers of MoAZ (Mogilev Automobile Plant); local organization at “Ecran” Mogilev Plant; private employers of Mogilev; Belarusian Free Trade Union at the “Belgoles” State Timber Processing Amalgamation.
4. (c) Considering that the Presidential Instructions of February 2000 constitute a serious interference in the internal affairs of trade unions, the Committee urges the Government to take the necessary measures to ensure that such interference will not occur in the future, including through the revocation of the relevant instructions and, if necessary, by the issuing of clear and precise instructions to relevant authorities that interference in the internal affairs of trade unions will not be tolerated.
5. (d) As concerns the freezing of the FPB bank accounts just prior to their annual congress, the Committee recalls that the freezing of union bank accounts may constitute a serious interference by the authorities in trade union activities and requests the Government to avoid having recourse to such measures in the future.
6. (e) As concerns the general and specific allegations of anti-union discrimination and interference, the Committee requests the Government to take the necessary measures to institute independent investigations into all the above matters noted in its interim conclusions and, where acts of anti-union discrimination or interference have been discovered, to ensure that the effects of such discrimination are redressed. The Government is requested to keep the Committee informed of the progress made in this respect and of the outcome of these investigations.
7. (f) As regards the dismissal of Mr. Evmenov for, among others, the refusal to organize a “subbotnik” (unpaid voluntary labour), the Committee requests the Government to take the necessary measures to ensure that Mr. Evmenov is reinstated in his post with full compensation for any lost wages and benefits and to keep the Committee informed in this regard.
8. (g) The Committee requests the Government to take the necessary measures to ensure that any legislative or other limitations to strike action arising out of sections 388 and 393 of the Labour Code are restricted to public servants exercising authority in the name of the State and to workers in essential services in the strict sense of the term.
9. (h) The Committee requests the Government to transmit any further information it considers relevant in reply to the additional allegations of interference raised in the complainants’ most recent communications.
10. 115. Neither the additional information transmitted by the complainants in communications dated 9, 24 and 25 January 2001 nor the Government’s reply to some of these allegations in its communication dated 23 February 2001 were fully reflected in the Committee’s last examination of the case due to the receipt of these communications just prior to the Committee’s March meeting. These communications are therefore set out in full below.
11. B. The complainants’ additional allegations
12. 116. In its communication dated 9 January 2001, transmitted by the Federation of Trade Unions of Belarus on 9 February, the Belarus Radio and Electronic Workers’ Union (REWU) stated that a new regional trade union of electronics industry workers, not affiliated to REWU, was established at the Integral Amalgamation. REWU claims that the director of the Amalgamation put pressure upon the union members and threatened them with dismissal if they did not submit applications to walk out of the established sector-level union (REWU). Moreover, the Integral Amalgamation administration did not admit the REWU president nor the executive committee officials onto the premises of the enterprise in order to participate in the Dzerhinsky Plant Trade Union Committee session in September 2000 which was to consider the walk-out.
13. 117. REWU explains that these facts were reported to the Minister of Industry and the Minister of Justice and that the Public Prosecutor of Minsk had been requested to undertake an investigation and initiate criminal proceedings. The Prosecutor’s Office refused to initiate a criminal case for lack of corpus delicti, yet the District Prosecutor has instructed the director of the Integral Amalgamation to eliminate all violations of the Law on Trade Unions. For its part, the Ministry of Justice replied that it had not received any statements concerning massive recruitment of members into the newly formed trade union, adding that employees had a right to choose the trade union to which they wished to belong.
14. 118. Both the Trade Union Committee and the Integral administration refused to provide REWU with information on those employees who chose to walk out and join the new Integral Amalgamation union.
15. 119. At another plant in the Integral Amalgamation (Tsvetotron Plant in Brest), while a local organization was formed on 17 October 2000 to join the new Integral regional union, the local organization which was affiliated to REWU also remained intact. Extracts from the minutes of the Tsvetotron Plant trade union conference in September 2000 concerning the affiliation to the Integral Amalgamation union were also provided. The minutes show that the report of the conference was made by the plant director and interventions in favour of the new affiliation were made by the director of the instrument plant and the deputy-director of human resources. On the other hand, the deputy chair of the Trade Union Committee maintained that “there was nothing bad in putting efforts in order to find solutions to many problems, provided the Integral Amalgamation Trade Union Committee remained part of the REWU. She focused on the administration’s uncivilized interference into the plant union’s home affairs in the form of holding shop-level meetings and fixing the time of the conference without consultation with the union”.
16. 120. At the REWU conference on 14 December, new members of the Tsvetotron Trade Union Committee were elected to replace those who had opted for another union. While the Trade Union Committee has preserved its legal personality and a bank account, the director and deputy-director of the plant are creating various obstacles to its operations, including denying trade union representatives access to the plant, preventing the Trade Union Committee chair from participating in enterprise management bodies, threatening workers with dismissal if they refuse to withdraw from the union, delaying payment of trade union dues and non-application of the branch collective agreement.
17. 121. An appeal concerning these infringements of trade union rights at the Tsvetotron Plant was submitted to the Prosecutor’s Office of the Moskovsky district of Brest who, in a statement of 29 November 2000, pointed out to the plant administration that further violations of the Law on Trade Unions and of the Presidential Decree on measures for furthering interaction of state administration and trade unions would be inadmissible. In a letter signed by the Moskovsky District Prosecutor, which was attached to REWU’s communication, the District Prosecutor states that it was found upon verification that the Tsvetotron Plant management did not fully comply with REWU by-laws when, upon management’s initiative, a trade union conference was held on 17 October 2000 with the following agenda item: “Affiliation of the primary trade union of the Tsvetotron Plant with the new regional trade union of electronics industry workers of the Integral Amalgamation”. The question of withdrawing from membership of REWU was not even included on the conference agenda nor was it discussed. The District Prosecutor concludes that a new trade union was established and joined by members of the REWU primary trade union who consequently became members of two distinct regional trade unions simultaneously.
18. 122. The District Prosecutor notes in his letter that REWU’s by-laws provide that withdrawal must be voluntary, at the worker’s own initiative and only by written application; yet many of the individual workers did not agree with the conference’s decision to join the Integral union. Finally, the District Prosecutor noted that, according to the branch collective agreement, the employer was to transfer trade union dues but a total of 725,158 roubles for the month of September had not been transferred. In conclusion, the District Prosecutor proposed, among others, that the question of the legality of establishing at the Tsvetotron Plant a regional trade union of electronics industry workers of the Integral Amalgamation should be re-examined and that account should be taken of the fact that trade union membership should be voluntary and withdrawal from membership should be made upon written application of each member.
19. 123. REWU adds that, in the course of their re-registration under Presidential Decree No. 2, the REWU and its amended by-laws were registered on 12 May 1999 and no question had been raised at that time as to the validity of the amendment made to the by-laws on 3 March 1999 (this amendment had replaced the section which gave primary organizations the right to voluntarily disaffiliate from the branch union by decision of their general assemblies (conferences) with a provision that withdrawal from the branch union would occur upon receipt of written application by individual members). According to REWU, this amendment had been adopted by the plenary session of the branch union and later approved in September 2000 at the branch union’s congress.
20. 124. REWU explains however that, upon the request of the newly elected Trade Union Council of the Integral workers, the Minister of Justice stated that there was no legislation granting the right to a trade union to forbid local units to leave their branch unions at the time these amendments were introduced into the REWU’s constitution and that moreover the amendments had not been approved by the REWU’s congress. The Minister concluded that the amendments had no legal effect.
21. 125. In its communication dated 24 January 2001, the Belarusian Free Trade Union (BFTU), affiliated to the Congress of Democratic Trade Unions (CDTU), stated that it has still not been able to register its structures at local executive committee level due to the requirement of a legal address. The BFTU adds that managers refuse to negotiate with unregistered organizational structures, their trade union leaders are not allowed to enter the workplace and trade union offices are taken away by force.
22. 126. The BFTU has only been able to register one local organizational structure in Mogilev at the Zenith Plant. All other applications for registration were denied due to lack of legal address. While the organization had complained to the district court, the BFTU alleges that the courts refuse to hear cases on their merits and simply rubber-stamp the illegal decisions of the registration bodies.
23. 127. Finally, the BFTU also provides information concerning the dismissal of Mr. Bourgov, Chairperson of the MoAZ Free Trade Union, for refusing to work on a non-workday.
24. 128. By a letter dated 25 January 2001, the Belarus Automobile and Agricultural Machinery Workers’ Union (AAMWU) transmits several documents in support of the complaint concerning interference in the internal affairs of trade unions. Among the documents is a declaration of the Presidium of the Federation of Trade Unions of Belarus (FPB) which refers to new instructions issued by the Presidential Administration aimed at further limiting trade union rights and liberties, as well as attempts to amend the trade union legislation without consulting the federation.
25. 129. The AAMWU also attaches Order No. 584 of the Borisov Aggregate Plant which bans all mass events held by public organizations on the enterprise territory at the industrial premises, roads and pavements, bans meetings on the enterprise territory in places which have not been placed at their disposal without submitting an application to the employer at least two weeks before and prescribes that unit managers and vice-directors shall personally participate in any authorized events in order to educate personnel, represent management and answer questions. All unauthorized events shall be suppressed by the head of the Security Unit.
26. 130. In its communication dated 28 March 2001, the FPB refers to the new instructions from the Presidential Administration which, among others, set out:
27. 1. The Ministries of Justice, Labour and Industry of Belarus, together with the members of the House of Representatives and the Council of the Republic, shall by 20 January 2001 draw up provisions supplementing existing legislation on trade unions, including provisions relating to the establishment of other workers’ representative bodies (such as works councils, etc.). Until the adoption of amendments to legislation governing the activities of trade unions, no general agreement between the Council of Ministers, employers’ organizations and trade unions should be signed.
28. 2. The Council of Ministers, provincial executive committees and the Minsk Municipal Executive Committee shall ensure that, when collective agreements are concluded for 2001, efforts are intensified to speed up the transition to contract-based labour relations and to resolve the issue of the inappropriateness of transferring a proportion of trade union dues to higher level trade union structures.
29. …
30. 6. The Minsk Executive Committee (city authorities) shall intensify work with a view to establishing a municipal trade union council.
31. 131. The FPB further alleges that: the media have begun a widespread campaign to discredit the unions and particular union leaders; the President’s Office is attempting to disrupt the trade unions or bring them under state control; ministers are under instructions to dismiss union officials who voice critical views; trade unions are denied the right to register and thus, in effect, liquidated; and employers refuse to transfer membership dues.
32. 132. In addition, trade union structures are being undermined by the increased pressure exerted on the primary trade unions to force them out of the branch unions and federations. For example, as a result of the pressure and threats exerted by the administration of the Belarus Metallurgical Plant, all the workers at the plant in question have been forced to leave the branch metalworkers’ union and set up a works union under the control of the plant’s administration. Similar attempts are being made at the Rechitskij Hardware Plant in Gomel, while union leaders are prevented from entering plants.
33. 133. The FPB further refers to threats made by the Ministry of Justice to dissolve the federation if its president stands in the forthcoming national presidential elections. In this respect, the FPB refers to a press release from the Ministry dated 12 January 2001 which states that:
34. The nomination of a representative of the FPB as a candidate for the presidency in the Republic of Belarus openly contradicts the Federation’s Constitution. Besides, the very fact of considering the issue at a council session is not in line with the goals and objectives of a trade union association and the Electoral Code of the Republic of Belarus. Under such circumstances, the Ministry of Justice has got all grounds for issuing a written warning to the Council, and subsequently for raising a question of dissolving the Federation of Trade Unions of Belarus in accordance with the law.
35. 134. Furthermore, in order to isolate all democratic opposition, Presidential Decree No. 8 was signed on 12 March 2001, prohibiting international assistance to any non-state organizations, including trade unions. A copy of the Decree was annexed to the complaint.
36. 135. In its communication dated 30 March 2001, the AAMWU states that, despite the Committee’s examination of their complaint, the state authorities have not changed their attitude to the trade union movement and are intensifying their attacks on trade unions and attempting to subordinate them to the state administrative bodies. The principal manifestations of this, on the instructions of the Presidential Administration, include the following:
37. – prohibition on transferring to the trade union bodies union dues collected through non-cash payments from union members in enterprises. The dues withheld from the AAMWU already total nearly 300 million roubles, with about 130 million roubles in dues collected every month;
38. – the establishment of corrupt “tame” trade unions at enterprise level, resulting in withdrawal of membership from the branch unions and the FPB. Workers are drawn into these trade unions by means of deceit, threats and other forms of coercion (for example in the “Integral” production association and the Belarus Metal Works);
39. – persecution of and pressure on enterprise directors who do not wish to join the anti?union campaign;
40. – an organized campaign to discredit union leaders in the state-owned media using lies, slander, etc.;
41. – promulgation of Presidential Decree No. 8 of 12 March 2001 respecting measures to improve the procedure for receiving and utilizing free foreign aid, which practically prohibits international activity by trade unions;
42. – drafting of amendments to the Act respecting trade unions which restrict their rights, especially the freedom to join a trade union.
43. 136. Finally, in its communication dated 26 April 2001, the Agricultural Sector Workers’ Union (ASWU) alleges significant delays in the transfer of union dues.
44. C. The Government’s reply
45. 137. In its communication dated 23 February 2001, the Government transmits a partial reply to the allegations made in the complainants’ communications of 24 and 25 January 2001.
46. 138. Referring to the letter from the chairperson of the Belarusian Free Trade Union (BFTU) which touches upon matters related to the registration of the primary trade unions, the Government states that the facts underlying the refusal to register these primary organizations stem from their failure to present information confirming the existence of a legal address (providing the location of their executive bodies). In particular, the Government has noted that a basic conflict arises, in so far as trade unions generally have tried to indicate the address of the premises made available to them by the employer as a legal address. The Government reiterates that the national legislation gives the employer the right, but not the obligation, to make available to trade unions the equipment, premises and means of transport required for their operation. This matter is settled by negotiation between the parties, on a voluntary basis. The Government adds, however, that, in the absence of an agreement with the employer, the trade unions may, as a legal address, present the registration body with an address of corresponding premises located outside the enterprise. Thus, the Government does not agree with the complainants’ assertion that the trade union is completely dependent on the employer to obtain a legal address required for state registration.
47. 139. At the same time, the Government is working on modifying the current registration procedure, in particular to cancel the requirement for the confirmation of the existence of a legal address for the recording of trade unions’ organizational units which, according to their trade unions’ by-laws, do not constitute legal entities. Along these lines, a copy of a draft decree to amend Presidential Decree No. 2 was annexed to the Government’s reply.
48. 140. As concerns the dismissal of I. Bourgov and A. Evmenov, the Government indicates that this was due to their violation of labour discipline (absenteeism). No violation of the legislation by the plant’s management has been established and this has been confirmed by the decision of the Oktyabrsky district court in Mogilev and the Mogilev regional court.
49. 141. As for the assertion contained in the statement by the Council Presidium of the Federation of Trade Unions of Belarus (FPB) to the effect that amendments and additions to the Act on trade unions have supposedly been prepared, the Government notes that this does not correspond to its policy in the social and labour sphere, which is aimed at developing social dialogue and the further improvement of social partnership in the Republic. The Ministry of Labour, which is the national state administrative body responsible for relations with the social partners, would not support such changes to the law. The Government adds that, should a need arise to modify the Act on trade unions, Belarusian trade unions must by statute be invited to take part in the drafting of such modifications.
50. 142. The Government expresses its surprise at the complainants’ statement that “until amendments to the legislative acts governing the activities of trade unions are adopted, the Government has been instructed to refrain from signing the General Agreement between the Council of Ministers, the employers’ associations and the trade unions”. In the Government’s opinion, the chances of signing the General Agreement depend on the positions of all the parties, on their desire and willingness to negotiate positively and to find compromises, on their adherence to the legally recognized principles of social partnership and on their recognition and respect for the wilful assumption of genuine commitments.
51. 143. According to the Government, certain demands by the FPB in respect of the General Agreement have required additional consultation, both in the framework of tripartite working commissions and within government bodies which have had to work out acceptable solutions faced with an extremely large number of demands. Finally, on 24 January 2001, a compromise was reached and on that basis the Government stated that it was prepared to sign the General Agreement for 2001-03. In the meantime, the FPB sent a letter to the First Deputy Prime Minister on 6 February 2001 in which it put forward additional proposals to the positions previously accepted, with which the Government can only agree in part.
52. 144. As concerns the question of the procedure for the transfer of trade union dues, the Government transmits a constitutional court ruling dated 21 February 2001 and adds that section 27 of the Act on trade unions provides that the sources and procedures for forming and using the resources of trade union budgets are defined by the by-laws of the unions.
53. 145. Concerning the statement of the FPB Council about measures supposedly taken by the Minsk municipal executive committee to set up a Minsk municipal trade union association, which in the opinion of the trade unions violates the law of the Republic of Belarus, the Government states that information was posted on the Internet page of the Belarusian trade unions on 26 January 2001 to the effect that the FPB Council’s Presidium had taken a decision to set up a Minsk municipal association of sectoral trade unions as an organizational unit. Towards that end, according to the information posted on the trade union’s page, an organizing committee is being established in the FPB which will include representatives of all the sectoral trade unions and regional associations. The posting by the trade unions of this information on the Internet testifies to the fact that the FPB independently, and without any interference on the part of the executive branch, is working to set up a new organizational unit.
54. 146. As regards an order issued by the Minsk Motor Plant in December 2000, the Government points out that its provisions are aimed exclusively at regulating events initiated by public organizations (including trade unions) within the territory of the enterprise, at ensuring order, and at preserving the employer’s property and ensuring that occupational safety standards are observed. The order prohibits events at premises designated solely for production, in passageways and on sidewalks. The employer is obliged to take the appropriate measures to ensure safe conditions of work for the employees. The order issued by the Borisov Equipment Plant is similar to this one. The Government therefore cannot agree that the provisions of the orders violate the national legislation and international labour standards, including Convention No. 98.
55. 147. In its communication dated 13 April 2001, the Government transmitted additional information in reply to the allegations concerning interference in the internal affairs of REWU at various enterprises of the Integral Amalgamation. The Government states that the REWU by-laws provided that “primary-level organizations have the right to voluntarily affiliate to and disaffiliate from the branch union. In the latter case they keep a share of the joint assets and financial resources. The decision to withdraw shall be taken by the assembly (conference) of the primary-level organization”. According to the Government, the decision of the first-level trade union “NPO” (Research and Production Association) Integral to withdraw from the REWU was voluntary and prompted by disagreements relating to the amount of the trade union dues paid by the organization to the REWU.
56. 148. The provision concerning voluntary disaffiliation of a primary-level trade union from the branch union by decision of the assembly (conference) was deleted by the Sixth Plenary Session of the Republic Council of the REWU held on 3 March 1999. However, the Government states that the 1995 version of its by-laws provides that:
57. … the highest body of a trade union is its congress. It is within the exclusive remit of the congress to adopt the trade union’s by-laws, or to amend and supplement them. The council of the trade union is the higher body which supplements and amends the trade union’s by-laws pursuant to changes in the laws and regulations of the Republic of Belarus in force, and these amendments and additions are then approved at its congress.
58. In this respect, the Government emphasizes that, at the time at which the Council of the REWU made this amendment to the by-laws, there had been no amendments of the laws and regulations in force that would have constituted grounds (as required by the by-laws) for the Council to introduce amendments in the by-laws. This, according to the Government, is the reason underlying the ambiguous interpretation of the question of legitimacy of the amendments introduced to the trade union’s by-laws.
59. 149. The amendments to the REWU by-laws were approved at the trade union’s Third Congress on 12 October 2000, while the constituent conference of the workers of the Integral Research and Production Association adopted the decision to establish the Regional Trade Union of Electronics Workers of NPO Integral on the basis of the primary-level trade union NPO Integral and to disaffiliate from the REWU on 8 September 2000 and was registered on 18 September 2000, in accordance with the legislation in force.
60. 150. The trade union conference of the workers of the Tsvetotron Plant in Brest decided that the plant’s primary-level organization would affiliate to the Regional Trade Union of Electronics Workers of NPO Integral and disaffiliate from the REWU on 17 October 2000. Upon individual requests being made by the workers, a primary-level organization of the Regional Trade Union of Electronics Workers of NPO Integral was established at the Tsvetotron Plant in Brest. According to the Government, out of 1,517 staff at the plant, 1,250 joined the new first-level organization by individual request. This primary-level organization was recorded by Decision No. 995 of 1 November 2000 of the Administration of the Moskovsky District of Brest.
61. 151. Finally, the Government asserts that the management of the NPO Integral enterprise does not bring pressure to bear on the workers with regard to their joining or withdrawing from trade unions. The voluntary nature of the workers’ decision to disaffiliate from the REWU and join the Regional Trade Union of Electronics Workers of NPO Integral is borne out by the relevant records and individual requests by workers.
62. 152. The Government stresses the importance it attaches to workers being able in practice to establish organizations of their own choosing in full freedom and to join such organizations without any interference and therefore considers that it should neither support nor hinder attempts made within the framework of the law to supplant an existing organization. In conclusion, the Government again emphasizes its interest in reaching a speedy resolution of the complaint and its willingness to take the necessary steps to implement the Committee’s recommendations.

D. The Committee’s conclusions

1. 153. The Committee notes that the additional information provided by the complainants in this case refers, both in general and specific terms, to the lack of effective action on the part of the Government to redress the issue of legal address which was hindering the registration of a certain number of primary-level trade union organizations and to continuing interference in the internal affairs of trade unions.
   • Trade union registration
2. 154. The Committee takes due note of the communication dated 24 January 2001 of the Belarusian Free Trade Union (BFTU) in which it states that it has still not been able to register its structures at the local level due to the requirement of a legal address. The BFTU adds that the consequences of not being registered are great since employers refuse to negotiate with unregistered organizational structures, their leaders are not allowed to enter the premises, and their offices are taken away by force.
3. 155. During its last examination of this case, the Committee had noted the suggested changes to Presidential Decree No. 2 set out in a draft decree accompanying the Government’s reply of 23 February 2001. At that time, the Committee noted that these amendments appeared to be limited to the recording of organizations which have no legal personality, while the need to furnish a legal address for organizations wishing to be registered remained. The Committee had recalled the difficulties in obtaining the necessary legal address for registration purposes cited in the complaint and noted in the mission report, and requested the Government and the complainants to provide additional information as to the practical resolution of the difficulties for registration encountered by the complainants. Furthermore, the Committee requested the Government to provide detailed information on the status of the requests for registration of the following organizations: OAO “Steklozavod Oktiabr” (Mogilev region); the Minsk Automobile Plant Free Trade Union of Metalworkers; the “Tsvetron” Plant Free Trade Union of Metalworkers (Brest); the local organization of “Khimvolokno” (Grodno); the Belarusian Free Trade Union at the Grodno Fine Fibres Production Amalgamation; the local organization of the Minsk Instrument Engineering Plant; the Free Trade Union of the Byelorussian “Zenith” Plant (Mogilev); Mogilev Construction Trust No. 12; Flax Processing Plant (Orsha); Companies “Electroseti” (Orsha); “BelVar” (Minsk); “Naftan” Production Amalgamation (Novopolotsk); “Avtogydrousilitel” Plant (Borisov); Production and Technical Association “Shveinik” (Borisov); Free Trade Union of the Workers of MoAZ (Mogilev Automobile Plant); local organization at “Ecran” Mogilev Plant; private employers of Mogilev; Belarusian Free Trade Union at the “Belgoles” State Timber Processing Amalgamation.
4. 156. The Committee notes with regret that the Government has not provided any information to demonstrate that progress has been made in respect of the measures envisaged to eliminate the obstacles to registration caused by the legal address requirement and that it has not provided the information requested concerning the status of the abovementioned organizations. The Committee therefore once again urges the Government to take the necessary measures to eliminate the obstacles to registration caused by the legal address requirement and to provide detailed information on the status of the requests for registration made by the abovementioned organizations.
   • Government interference
5. 157. In its previous comments, the Committee had noted the Presidential Instructions of 11 February 2000 which called upon the ministers and chairs of government committees to interfere in the elections of branch trade unions, their congresses, and the Congress of the Federation of Trade Unions of Belarus (FPB) and urged the Government to take the necessary measures to ensure that such interference in internal trade union affairs would not occur in the future, including through the revocation of the relevant instructions and, if necessary, by issuing clear and precise instructions to relevant authorities that interference in the internal affairs of trade unions would not be tolerated.
6. 158. The Committee now notes the complainants’ allegations set forth in the communications of 25 January and 30 March (from the Belarus Automobile and Agricultural Machinery Workers’ Union (AAMWU)) and of 28 March 2001 (from the FPB) that new instructions were issued by the Presidential Administration in January 2001 which call upon the Ministries of Justice, Labour and Industry to draw up provisions relating to the establishment of other worker representative bodies, such as works councils, and indicating that no general agreement should be signed until the adoption of such amendments. According to the complainants, the Instructions further state that efforts should be intensified to speed up the transition to contract-based labour relations and to resolve the issue of the inappropriateness of transferring a proportion of trade union dues to higher level trade union structures. Finally, they refer to the need to intensify efforts to establish a municipal trade union council in Minsk.
7. 159. The Committee notes that the Government’s reply of 23 February 2001 does not comment upon the alleged intention to amend the trade union legislation, but does deny that the adoption of such amendments would be linked to the signing of the General Agreement, since this depends rather on the will of the parties to negotiate and to find compromises. The Government adds that any such amendments would first be the subject of consultations with the social partners.
8. 160. As to the question of the procedure for the transfer of trade union dues, the Committee notes that the constitutional court was seized with this matter by “a citizen appeal”. The Committee takes due note of the constitutional court ruling of 21 February 2001, annexed to the Government’s reply, which reaffirms the constitutionality of the deduction of trade union membership dues from a worker’s wages through non-cash payment to trade union accounts where a written application has been submitted by the worker for such payment, while adding that, in the absence of an express application, deductions from wages are illegal. Given that some trade union members have not submitted such applications and that there even may have been deductions from wages of non-union members, the court draws the attention of trade unions to the lack of due control on their part of compliance with the established procedure for the payment of trade union dues.
9. 161. Finally, as concerns the instruction concerning the establishment of a Minsk municipal trade union, the Government asserts that this was a decision of the federation’s own Presidium.
10. 162. Firstly, as concerns the overall question of the Instructions of the Presidential Administration of January 2001, while taking due note of the information provided by the Government, the Committee must express its deep concern, not so much for the substance of the issues raised in the Instructions, but rather for the mere fact that these matters should be the subject of Presidential Instructions, particularly in the light of the general climate of industrial relations in the country since the submission of the complaint. While an intention to amend the labour legislation by establishing other representative bodies of workers such as works councils is not, in and of itself, a violation of freedom of association principles, the prioritization of such amendments in high-level government instructions in a context where all the registered trade union bodies in the country have complained of state interference in their internal affairs and where certain primary-level organizations have been refused registration, does give rise to certain doubts as to the Government’s sincere desire to reinforce the social partnership on the basis of mutual faith and confidence. Furthermore, as concerns the possible approach to such amendments, the Committee must recall that the Collective Bargaining Convention, 1981 (No. 154), (ratified by Belarus) contains explicit provisions guaranteeing that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 787].
11. 163. The interfering nature of these Instructions is even more apparent when one considers that the Instruction “to resolve the issue of the inappropriateness of transferring a proportion of trade union dues to higher level trade union structures” coincides with a “citizen appeal” to the constitutional court on the procedure for the transfer of trade union dues. Finally, while an internal trade union decision to establish a municipal trade union council would appear to be wholly consistent with the right of workers’ organizations to formulate their programmes and activities, the Committee is obliged to conclude that a Presidential Instruction to the city authorities to intensify their work in this respect constitutes undue interference in the internal affairs of trade unions.
12. 164. In the light of the above considerations, the Committee must once again urge the Government to take the necessary measures immediately to ensure a stop to such government interference into the internal affairs of trade unions and further urges it to give serious consideration to the need to issue clear and precise instructions to all relevant authorities that interference in the internal affairs of trade unions will not be tolerated.
13. 165. Looking at the specific Instruction to intensify efforts to “resolve the issue of the inappropriateness of transferring a proportion of trade union dues to higher level trade union structures”, the Committee notes that this Instruction coincides with the allegations made by several of the complainants of delays in the transfer of trade union dues to their organizations. In this respect, the Committee notes the statement of the District Prosecutor annexed to the Radio and Electronics Workers’ Union’s communication which refers to a total of 725,158 roubles for the month of September which had not been transferred to the branch union. It further notes that the AAMWU refers to a prohibition on the transfer to trade union bodies of dues collected through non-cash payments from union members in enterprises amounting at the end of March to nearly 300 million roubles. The Committee must recall in this respect that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations [see Digest, op. cit., para. 435]. It expresses its deep concern that, within the context of a significant delay in the transfer of dues, the Presidential Instructions of January 2001 call into question the appropriateness of such transfers. The Committee therefore requests the Government to establish, as a matter of urgency, an independent investigation into the claims of delayed transfer of union dues made by the complainants and to take the necessary measures to ensure the payment of any dues owed. It requests the Government to keep it informed of the outcome of these investigations. Further noting that the communication of the Agricultural Sector Workers’ Union (ASWU) dated 26 April also refers to significant delays in the transfer of union dues, the Committee requests the Government to include these claims in the independent investigation to be established and to provide detailed information in reply to these allegations.
14. 166. As concerns the press release from the Ministry of Justice concerning the nomination of a representative of the FPB as a candidate for the presidency of the country and the possibility, in these circumstances, of raising the question of dissolving the federation in accordance with the law, the Committee recalls that measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association [see Digest, op. cit., para. 664]. The Committee must express its deep concern that the press release refers to such a possibility and given the extremely serious consequences dissolution of a union involves for the occupational representation of workers, the Committee considers that such circumstances can in no way justify the dissolution of an entire federation. The Committee therefore urges the Government to ensure that no steps will be taken to consider the dissolution of the federation for these reasons.
15. 167. Finally, the Committee notes with deep concern the allegations concerning Presidential Decree No. 8 of 12 March 2001 regarding certain measures aimed at improving the arrangement of receiving and using foreign gratuitous aid. In particular, the Committee notes that a certificate must be issued registering such aid before it may be used. It further notes that paragraph 4.3 of the Decree provides that foreign gratuitous aid, in any form, cannot be used towards the preparation and carrying out of, inter alia, public meetings, rallies, street processions, demonstrations, pickets, strikes, designing and disseminating campaign material, as well as running seminars and other forms of mass campaign of the population. Paragraph 5.3 provides that violation of this requirement by trade unions can result in the termination of their activities and the provision of such aid by representative bodies of foreign organizations and international non-governmental organizations on the territory of Belarus can result in the termination of the activities of such bodies. The commentary to the Decree emphasizes that “even a single violation can bring about the elimination of a public association, fund or other non-profit organization”.
16. 168. The Committee must recall in this respect that trade unions should not be required to obtain prior authorization to receive international financial assistance in their trade union activities and that legislation prohibiting the acceptance by a national trade union of financial assistance from an international organization of workers to which it is affiliated infringes the principles concerning the right to affiliate with international organizations of workers [see Digest, op. cit., paras. 633 and 632]. The Committee therefore considers that the aspects of the Decree which prohibit trade unions, and potentially employers’ organizations, from using foreign aid, financial or otherwise, from international organizations of workers or employers is a serious violation of the principles of freedom of association and urges the Government to take the necessary measures, as a matter of urgency, to ensure that workers’ and employers’ organizations may benefit freely, and without previous authorization, from the assistance which might be provided by international organizations. The Government is requested to keep the Committee informed of the measures taken in this regard.
    • Interference in trade union internal affairs
    • and anti-union discrimination
17. 169. The Committee notes the additional allegations of interference raised by the FPB, the AAMWU and the Radio and Electronic Workers’ Union (REWU), particularly as concerns efforts to compel trade union committees of various enterprises to withdraw from the current industrial unions and to create their own unions in order to encourage fragmentation of the trade union movement. In its communication dated 9 January 2001, REWU provides documentation in respect of its previous allegations that the direction of the Integral Amalgamation put pressure on workers to break off from REWU and that REWU officials were denied access to the premises when this matter was being considered. REWU also provided minutes of the trade union conference at the Tsvetotron Plant of the Integral Amalgamation in Brest when this issue was discussed. In particular, the Committee notes from the minutes that the report of the conference was made by the plant director and interventions in favour of the new affiliation were made by the director of the Instrument Plant and the deputy-director of human resources whereas the deputy chair of the Trade Union Committee desired that the Integral Amalgamation Trade Union Committee remain part of REWU. The Committee further notes from the report that the deputy chair had referred to “the administration’s uncivilized interference into the plant union’s home affairs in the form of holding shop-level meetings and fixing the time of the conference without consultation with the union”.
18. 170. While the report of the District Prosecutor in respect of the decision at the Tsvetotron Plant corroborated REWU’s allegations and, in conclusion, proposed that the question of the legality of establishing a regional trade union of electronics industry workers of the Integral Amalgamation at the Tsvetotron Plant should be re-examined and that account should be taken of the fact that trade union membership should be voluntary and withdrawal from membership should be made upon written application of each member, the Committee notes that, according to the documents annexed to the complaint, the Minister of Justice has affirmed that the amendments made to the REWU by-laws providing that membership withdrawal must be based on individual written application are invalid. In this respect, the Committee wishes to recall that the drafting of, and amendments to, the constitutions and by-laws of workers’ organizations should, as a general rule, be a matter solely for the organization concerned and its members. Any question as to the legality of the procedure for amending a union’s constitution or by-laws should be a matter for the judicial authority. The Committee considers that a pronouncement by an administrative body in this respect constitutes undue interference in the internal affairs of the union concerned. Consequently, the Committee considers that the letter of the Minister of Justice declaring these amendments to be invalid constitutes undue interference in the internal affairs of the REWU and requests the Government to ensure that such interference will not recur.
19. 171. While the complainants assert that the amendment in question was first adopted by the plenary session of the branch union and later approved at the branch union’s congress, and that no objection had apparently been made as to its legality when the new by-laws were registered during the process of re-registration under Presidential Decree No. 2, the Committee takes due note of the information provided by the Government concerning the ambiguity of the legality of the amendments in relation to REWU’s own by-laws concerning the procedure for their amendment. Nevertheless, the Committee wishes to express its concern over the serious allegations made by the complainant concerning management interference in the decision to set up a new regional trade union and the difficulties encountered by REWU representatives in obtaining access to the workplace in order to express their views on the matter and provide any relevant information. It further notes from the documentation provided in respect of the trade union conference held at the Tsvetotron plant the extent of the involvement of the plant management in the decision to withdraw from REWU, which the Committee considers demonstrates clear interference in internal union affairs. In addition, the Committee notes that the report of the District Prosecutor concerning the decision taken at the Tsvetotron Plant to withdraw from REWU concludes that there were several problems related to the convening of the trade union conference and the manner in which it was held. In these circumstances, the Committee requests the Government to take the necessary measures to institute an independent investigation into the questions surrounding the establishment of a regional trade union of electronics industry workers by the Research and Production Association of the Integral Amalgamation and the decision taken at the Tsvetotron Plant to affiliate to the new regional union. It requests the Government to keep it informed of the outcome of the investigation.
20. 172. As concerns similar alleged acts to break up the trade union movement, the Committee requests the Government to furnish information in reply to the additional allegations of threats and pressure exerted upon workers to coerce them to leave the branch union and set up new unions at the Belarus Metallurgical Plant and the Rechitskij Hardware Plant in Gomel.
21. 173. Finally, the Committee notes the allegations that, by enterprise order, the Borisov Aggregate Plant has: banned all mass events held by public organizations on the enterprise territory at the industrial premises, on the roads and pavements; required prior approval for any events held on premises which have not already been placed at the disposal of public organizations; and prescribed that unit managers and vice-directors should personally participate in any authorized events in order to educate personnel, represent management and answer questions. For its part, the Government refers to a similar order issued by the Minsk Motor Plant and points out that the provisions of such orders are aimed exclusively at regulating events initiated by public organizations (including trade unions) within the territory of the enterprise, at ensuring order, and at preserving the employers’ property and ensuring that occupational safety standards are observed.
22. 174. While recognizing that the employer may have a legitimate prerogative to ensure the proper regulation of activities on its premises, the Committee trusts that any refusal to authorize a trade union meeting or event will be reasonable and based on the type of considerations noted by the Government. Furthermore, the Committee considers that the order prescribing that unit managers and vice-directors should personally participate as representatives of management in any authorized events of trade unions is contrary to the right of workers’ organizations to exercise their activities without interference by employers. The Committee therefore requests the Government to take the necessary measures to ensure that any authorized trade union gatherings at the Minsk Motor Plant or at the Borisov Aggregate Plant may take place without any undue influence from the management in the internal trade union affairs.
23. 175. Finally, as concerns anti-union dismissals, the Committee recalls that, in its previous conclusions, it had requested the Government to take the necessary measures to ensure that Mr. Evmenov was reinstated in his post with full compensation for any lost wages and benefits and to keep the Committee informed in this regard. The Committee notes from the BFTU communication of 24 January 2001, and the court judgement annexed thereto, that the chairperson of the MoAZ Free Trade Union, Mr. Bourgov, has also been dismissed for being absent from work one day, a day which Mr. Bourgov contests was a non-workday. In its reply of 23 February, the Government merely states that both these dismissals were due to violations of labour discipline (absenteeism).
24. 176. The Committee must once again recall that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest, op. cit., para. 724]. Furthermore, in line with its previous conclusions concerning Mr. Evmenov, the Committee cannot accept that the failure to work on a non-workday should be considered a breach of labour discipline.
25. 177. The Committee therefore once again urges the Government to take the necessary measures to ensure that both Mr. Evmenov and Mr. Bourgov are reinstated in their posts with full compensation for any lost wages and benefits. The Government is requested to keep the Committee informed of the progress made in this respect.
    • Pending requests
26. 178. In its previous conclusions and recommendations, the Committee requested the Government to take the necessary measures to institute independent investigations into the threats of dismissal made to members of the GPO “Khimvolokno” Free Trade Union urging them to leave the union, as well as to the members of the Free Trade Union at the “Zenith” Plant, and the refusal to employ, after the expiration of his term of office, the re-elected chairperson of the Free Trade Union of Metalworkers at the Minsk Automobile Plant, Mr. Marinich. The Committee further requested the Government to ensure that the effects of any anti-union discrimination or interference in respect of the above cases be redressed. In the absence of any further information from the Government on these matters, the Committee once again requests it to keep it informed of progress made in instituting these investigations and their outcome.
27. 179. In conclusion, the Committee must express its continuing deep regret that, rather than taking the necessary measures to ensure that all attempts to interfere in the internal affairs of trade unions will immediately stop, as recommended by the Committee in its previous conclusions, it would appear that systematic attacks on trade union rights and the trade union movement in Belarus have become ever more frequent. The Committee once again urges the Government to do everything in its power to ensure that the trade union movement in Belarus can develop in full independence and autonomy.
28. 180. Finally, the Committee requests the Government to provide information in reply to the allegations made by the BFTU in its communication dated 23 March 2001.