Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 332, Noviembre 2003

Effect given to the recommendations of the Committee and the Governing Body

1. 155. The Committee examined this case at its June 2003 meeting [see 331st Report, paras. 678?706] and on that occasion it formulated the following recommendations:
   • – The Committee regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainant’s allegations. The Committee urgently requests the Government to be more cooperative in the future and in particular, it would request the Government to solicit information from the employer’s organization concerned with the view to having at its disposal its view as well as those of the enterprise concerned on the questions at issue.
   • – The Committee requests the Government to establish an independent investigation into the allegations of acts of anti-union discrimination and if it is proven that acts of anti-union discrimination were taken against RPD members, to take all necessary steps to remedy this situation, to ensure reinstatement at the TPK, as requested by the courts, as well as payment of lost wages.
   • – The Committee requests the Government to keep it informed of the outcome of the new case filed by the docker trade union members against new dismissals.
   • – The Committee requests the Government to take the necessary measures, including the amendment of the legislation, in order to ensure that the complaints of anti-union discrimination are examined in the framework of national procedures which are clear and prompt. The Committee requests the Government to keep it informed in this respect.
   • – As regards the complainant’s allegation of violation of trade union premises and property, the Committee considers that before being undertaken, the occupation or sealing of trade union premises should be subject to independent judicial review. Drawing the Government’s attention to the importance of the principle that the property of trade unions should enjoy adequate protection, the Committee requests the Government to take the necessary measures so as to ensure that this principle is respected.
2. 156. In its communication of 5 September 2003 the Government states that anti-union discrimination is prohibited under the Russian legislation, which also provides for legal remedies in case of violation of workers’ rights. The National Labour Inspectorate of Kaliningrad district has examined the allegation concerning the violation of labour legislation by the administration of the Commercial Seaport of Kaliningrad (TPK). The allegations of violation of labour rights of workers – members of the Russian Trade Union of Dockers (RPD) as concerns decrease of dockers’ wages following their transfer to different brigades, which took place after the termination of the strike on 28 October 1997, were not confirmed. All dockers, members and non-members of the RPD received the same wages. The investigation further found that from 1 April to 31 December 1998, 279 workers, including 55 dockers, were fired from the TPK due to the staff reduction. Twenty-six fired dockers were members of the RPD, all of them were dismissed with the approval of the trade union committee.
3. 157. The trade union organization addressed the Baltic District Court of Kaliningrad a complaint against the TPK on behalf of 24 dockers, members of the RPD. Following the court decision of 24 May 2002, the dockers were reinstated in their job on 27 May 2002. Since the court decision ordering compensation to the dockers was considered unlawful according to section 323 of the Code of Civil Procedure, the Kaliningrad Provincial Prosecutor suspended its execution of the decision. Prosecutor’s objection to the execution of court decision of 24 May 2002 was confirmed by the Presidium of Kaliningrad Provincial Court. Since the TPK administration did not offer to the dockers the job provided by the labour contract, the dockers did not come to work and were fired for absenteeism. The trade union once again addressed the Baltic District Court of Kaliningrad. Following the court decision of 7 October 2002, the dockers were once again reinstated in their jobs on 23 October 2002. However, the dockers did not come to work. The bailiff of the Baltic District Court had ordered the termination of the enforcement procedure of the court decision of 24 May 2002. The bailiff’s decision was contested by the dockers and revoked by the court. On 30 December 2002, the court issued a second decision containing clarifications of the previous decision and providing for the posts to be occupied by the dockers. The Kaliningrad port appealed the court decision of 30 December 2002. The civil board of the Kaliningrad Provincial Court rejected the appeals. The court decision on reinstatement of the dockers was submitted to the bailiff’s office on 31 March 2003. On 2 April 2003, the bailiff issued an order to reinstate the dockers in their posts. However, the indicated date of reinstatement was 31 March 2003 and not 30 October 2002 (the date indicated in the court decision). Due to this discrepancy, the dockers did not come to work. The port director appealed the bailiff’s actions. The court considered those actions to be legal. Due to the non-respect of the court decisions, administrative sanctions were imposed on the port director on two occasions. Presently, the port administration does not oppose to the reinstatement of dockers.
4. 158. As concerns the allegations of anti-union discrimination, the Government states that following relevant investigations, those allegations were not confirmed. The Kaliningrad Provincial Court had rejected those allegations on 14 August 2000 and the dockers did not appeal this decision.
5. 159. As concerns the allegations of violation of trade union premises by the port management, the Government states that the relevant inspections did not confirm these allegations. The union’s request to begin criminal procedure against the port was therefore rejected by the Office of the Prosecutor on 16 August 2002.
6. 160. Finally, the Government states that the dockers used all means of procedure provided for the effective protection of their rights by the former Code of Civil Procedure: they addressed the Labour Inspectorate of Kaliningrad, the Office of the Prosecutor and the courts. The Government points out that according to the newly adopted Code of Civil Procedure, judicial decisions are binding on everyone, including authorities, organizations and citizens. Moreover, on the alleged facts of discrimination, the Government indicates that complaint No. 67336/01 “Danilenkov and others v. Russia” will be examined by the European Court of Human Rights.
7. 161. The Committee notes the information provided by the Government. The Committee notes that although the Government denies the alleged facts of anti-union discrimination and states that the Russian legislation provides for the effective means of protection of trade union rights, it indicates that on numerous occasions, the complainants addressed the relevant judicial authorities seeking the implementation of court decisions to reinstate the dockers in their posts which the port administration had persistently refused to fully implement. The Government further indicates that the complainants have exhausted all possible remedies provided for protection of their rights. Noting with concern that numerous court decisions providing for the reinstatement of dockers, members of the RPD, cannot be enforced, the Committee continue to query the motivation behind the employer’s refusal, as well as the effectiveness of the procedures on protection of labour rights provided by the legislation. The Committee notes the Government’s statement to the effect that the port administration does not oppose to the reinstatement of dockers. However, no information on whether the dockers were reinstated was provided. The Committee requests the Government to provide information in this respect.
8. 162. As regards the allegation of violation of trade union premises and property, the Committee notes the Government’s statement to the effect that the relevant inspections did not confirm this allegation and therefore, the union’s request to begin criminal procedure against the port was rejected by the Office of Prosecutor on 16 August 2002. The Committee recalls from the previous examination of this case that on 8 August 2002, the port administration notified the RPD that it was to vacate the union office (the relevant documentation was attached to the complaint) and that five days later, the trade union premises were sealed without previous judicial review. The Committee therefore once again recalls that before being undertaken, the occupation or sealing of trade union premises should be subject to independent judicial review in view of the significant risk that such measures may paralyse trade union activities. The Committee draws the Government’s attention to the importance of the principle that the property of trade unions should enjoy adequate protection [see Digest of decisions and principles of the Freedom of Association Committee, paras. 183 and 184]. The Committee therefore once again requests the Government to take the necessary measures so as to ensure that this principle is respected.