Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 331, Junio 2003

1. 678. The complaint is contained in a communication dated 18 April 2002 from the Russian Labour Confederation (KTR). The KTR sent additional information in a communication dated 3 December 2002.
2. 679. The Committee has been obliged to postpone its examination of the case on two occasions [see 328th and 329th Reports, paras. 4 and 5 respectively]. At its meeting in March 2003 [see 330th Report, para. 8], the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. To date the Government has sent no observations.
3. 680. The Russian Federation has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 681. In its communications dated 18 April and 3 December 2002, the Russian Labour Confederation (KTR) alleges that members of the Russian Trade Union of Dockers (RPD), the affiliated organization of the KTR at the Commercial Seaport of Kaliningrad (MTPK), are subject to anti-union discrimination.
2. 682. In particular, the complainant states that after its founding in August 1995, the RPD endured constant pressure from the administration of the port. This pressure became especially pronounced after the trade union organized and carried out a strike from 14 to 28 October 1997 with demands to increase dockers’ wages, to guarantee employment and to provide free health care and insurance against accidents at work. The trade union was unable to achieve its demands and the strike was halted. However, not all dockers were allowed to return to work in their brigades. Twenty dockers who took part in the strike were transferred to brigades which were composed exclusively of members of the RPD. They no longer received work assignments and, as a result, almost completely lost their earnings. Work in normal conditions, and accordingly wages normally received, would be given to those dockers who would quit the RPD. Moreover, on 18 December 1998 the brigade of dockers, members of the RPD, was notified that in two months, their total monthly working hours would be reduced from 132 to 40, which was indeed done within the promised period. At the same time, the employer pressured workers to quit the RPD and to join the Trade Union of Water Transport Workers (PRVT), promising to provide the PRVT members with additional sums of money.
3. 683. The trade union repeatedly addressed the Office of the Public Prosecutor, the Federal Labour Inspection and Baltic District Court of Kaliningrad with a demand to recognize as illegal the discrimination suffered by 20 dockers and their transfer to separate brigades. The court declined to satisfy the claim on two occasions and on 14 August 2000, the Kaliningrad Provincial Court concluded, in appeal, that the disputes concerning violations of labour rights based on trade union membership did not fall under the jurisdiction of civil cases as the protection against discrimination could only be achieved by bringing to account individuals in a criminal case.
4. 684. Following the international action in support of the RPD initiated by the International Transport Workers’ Federation (ITF), the situation began to improve and by the summer of 2000 the brigade consisting of the RPD members received the same wages as the rest of the brigades in the port.
5. 685. In December 1999 the Commercial Seaport of Kaliningrad formed a branch company, Transport and Freight Company Ltd. (TPK), which would have exclusive rights to process freight work in the port. In December 2000, the port administration proposed to all dockers/machine operators to be transferred to TPK arguing that failure to do so would result in loss of work. After a certain time nearly all workers were transferred to TPK. However, according to the complainant, docker members of the RPD were not even offered such a transfer, while those RPD workers who showed the initiative and approached the administration with a wish to be transferred were told that such a transfer would only be possible upon their exit from the RPD. Following this restructuring, the administration of the Commercial Seaport of Kaliningrad has practically ceased to provide the docker members of the RPD with highly paid loading and unloading work and as a result, those dockers earned almost twice less than dockers at TPK.
6. 686. On 10 January 2001, the general director of the Commercial Seaport of Kaliningrad published Decree No. 11 “concerning the change in the number of employees and their work schedule” by which the administration ordered changes in the work schedule of 36 dockers working at the commercial seaport, 24 of whom are members of the RPD. As a result, the earnings of the RPD members left at MTPK were seven times smaller than the earnings of the PRVT members who were transferred to TPK.
7. 687. The trade union appealed these acts to the Commission for Labour Disputes at MTPK which, in its decision of 28 September 2001, stated that there were no violations of the rights of docker members of the RPD and that the “demand to recognize the actions of the administration as discriminatory cannot be considered by the Commission since this is not within the jurisdiction of the Commission. The disputes of this issue do not have a legal character […]”. The case was transferred for the consideration of the Justice of the Peace of the Baltic District of Kaliningrad, who refused to consider the part of application concerning discrimination, because such claims could only be handled within the framework of a criminal court case and would involve criminal responsibility of a person and not of an organization or enterprise.
8. 688. On 26 September 2001, the general director of MTPK issued Decree No. 317 “concerning staff reductions” in accordance with which 24 dockers/machine operators, that is all the remaining docker members of RPD, were dismissed. The administration of MTPK motivated the dismissals and refusal to transfer them to the TPK by the fact that the turnover of goods at the port was diminishing. However, the complainant indicates that on 19 October 2001, the provincial newspaper Kaliningradskaia Pravda (the article was attached to the complaint) published an interview with the aid to the general director of MTPK for external economic relations in which it is stated that the turnover of goods at the port grew by 35 per cent in 2001 while profits have grown by 44 per cent. Such growth in the turnover of goods resulted in the hiring of 37 new dockers. The complainant considers that the situation has developed as a result of persistent policies by the management of MTPK to infringe the rights of dockers with the intention of seeing all of them quit the RPD, which would result in the destruction of the trade union at the port.
9. 689. The RPD addressed a letter to the Kaliningrad Provincial Duma concerning the violation by the employer of the rights of the RPD members. The Duma’s Permanent Committee for Social Policy and Health Care issued, on 15 November 2001, a resolution expressing extreme concern about the situation developed at MTPK. Particularly, it found that “members of the RPD are placed at a disadvantage with regards to access to work and wages in comparison to the non-members” and that the RPD “reasonably poses the question of anti-union discrimination”. On 29 November 2001, the Duma Committee addressed a letter to the General Public Prosecutor of the Province with a request to undertake immediate measures to defend the rights of the RPD members and to examine the question of preparing a criminal investigation against the management of MTPK.
10. 690. On 24 May 2002, the Baltic District Court, while rejecting the claim of anti-union discrimination, found the dismissal illegal and issued an order of reinstatement of members of the RPD at their jobs with MTPK and on their transfer to TPK. The complainant submits the decision of the court, according to which the MTPK administration had no legal grounds for the decision to dismiss the plaintiffs on grounds of the reduction of staff since the port, having transferred to TPK its stevedoring function, property and all workers (only plaintiff dockers – RPD members – were laid off, the remaining workers being transferred) had in effect re-subordinated the production section to TPK and therefore was obliged to offer the plaintiffs continued employment in TPK. The management of MTPK reinstated the dockers at MTPK, but refused to implement the court decision as concerns continuation of their employment with TPK, which has been declared, since 1 October 2001, a successor of MTPK in terms of labour relations with all dockers, including RPD members. On 24 June 2002, TPK was reorganized into the company “Commercial Seaport” (MTP). The two companies requested the court to clarify its decision. On 3 July 2002, the Baltic District Court issued a ruling explaining its previous decision. The companies then appealed the court decision to the Kaliningrad Provincial Court, which confirmed, on 7 August 2002, the previous decision and obliged the employer to pay the illegally dismissed workers their average wage due from the time of their dismissal. However, instead of implementing the court decision, the MTPK management fired all RPD members from the port for absenteeism. According to the documents provided by the complainant, the dockers could not do their regular work at MTPK as it no longer had a licence for freight operations and refused to transfer them to the TPK.
11. 691. A new lawsuit regarding the new dismissal of the RPD members was filed and the case is yet to be considered. The complainant considered that the dismissals did not annul the employer’s obligation to implement the decision of 24 May 2002 to reinstate the RPD members at TPK. It therefore appealed to the bailiff department in order to begin an enforcement procedure. The enforcement procedure, began on 15 August 2002, was suspended on 27 August following a letter sent by the Kaliningrad Provincial Prosecutor to the bailiff department. The complainant considers that the actions of the Kaliningrad Provincial Prosecutor suspending the enforcement procedure are aimed at destroying RPD at the Commercial Seaport of Kaliningrad and are illegal, as according to the Law on Enforcement Procedure only a court has the right to suspend enforcement.
12. 692. On 11 September 2002, the Kaliningrad Provincial Court considered the MTPK’s and MTP’s appeal of the district court decision of 3 July 2002 containing clarifications of the previous decision and rejected it leaving the clarification standing. The court also noted that due to the reorganization of TPK into MTP, it was now the MTP’s obligation to hire the transferred dockworkers. However, the decision was still not implemented.
13. 693. In addition, on 8 August 2002, the port management notified RPD’s committee that they were to vacate the union office and that the union chairperson was to remit his pass to the port on the grounds that all RPD’s members were dismissed from the port. Considering the employer’s demand illegitimate the union refused to vacate the office. On the night of 13 August port management welded the metal door to the union office and put guards in front of it. All of the union’s belongings, including documents, money and equipment, remained in the sealed office. The trade union was forced to move the union’s belongings out of the office.

B. The Committee’s conclusions

1. 694. 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, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. 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.
2. 695. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 696. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed replies concerning allegations made against them [see the First Report of the Committee, para. 31].
4. 697. The Committee notes that the complainant in this case alleges acts of anti-union discrimination taken by the management of the Commercial Seaport of Kaliningrad (MTPK) against docker members of the Russian Trade Union of Dockers (RPD) as well as violation of trade union premises and property. The Committee regrets that the Government has sent no observations.
5. 698. The Committee notes from the complainant’s allegations that since its founding in 1995, the RPD has endured constant pressure from the administration of the port which through transfers created brigades composed exclusively of the RPD members, who received less work and therefore earned less, as well as the encouragement given to these docker members to leave the RPD and become members of other trade unions. The Committee notes however that, according to the complainant, the situation had improved by the summer of 2000 following the international action initiated by the International Transport Workers’ Federation.
6. 699. The Committee further notes that according to the complainant, in December 2000, following the restructuring of MTPK, the port administration proposed to all dockers, with the sole exception of members of the RPD, to be transferred to the new company, Transport and Freight Company Ltd. (TPK), which would have an exclusive right to process freight work in the port. The complainant states that such a transfer for the RPD members was only possible upon their resignation from the RPD. The complainant further states that 36 dockers, 24 of whom were members of the RPD, stayed at MTPK. As a result of this change and following Decree No. 11 “concerning the change in the number of employees and their work schedule” issued by the general director of MTPK on 10 January 2001, the earnings of the RPD members at MTPK were seven times smaller than the earnings of workers transferred to TPK. The Committee further notes that on 26 September 2001, 24 docker members of the RPD were dismissed and replaced shortly afterwards with 37 new dockers.
7. 700. The Committee notes that these administrative acts were appealed to different bodies, i.e. the Commission for Labour Disputes, the Justice of the Peace of the Baltic District of Kaliningrad, Baltic District Court, Kaliningrad Provincial Court and the Kaliningrad Provincial Duma. The Committee notes that in its decision of 14 August 2000, the Kaliningrad Provincial Court considered that the “fact [of discrimination] must be determined as a matter of a criminal case, in accordance with the demands of article 136 of the Criminal Code of the Russian Federation, which acts as a guarantee on the constitutional principle of the rights and freedoms of an individual. Moreover, verification of the fact that discrimination was committed may be possible only with respect to a specific individual, since the perpetrator of the crime, according to article 136 of the Criminal Code, may only be a specific individual acting with intent, but not an establishment or an organization”. Therefore, the court refused to consider the claim of anti-union discrimination. The same argument is also given by the Justice of the Peace of the Baltic District of Kaliningrad in its decision of 18 October 2001. The Committee further notes the resolution of the Kaliningrad Provincial Duma Permanent Committee for Social Policy and Health Care, in which it stated that there are reasonable grounds to believe that members of the RPD suffer from anti-union discrimination and that this situation has been artificially created by the management of MTPK, and the request addressed to the General Public Prosecutor of the Province to investigate the possibility of bringing criminal charges against the MTPK administration.
8. 701. The Committee further notes however the change in courts’ position concerning the procedural aspects of the allegations of anti-union discrimination. Instead of rejecting the anti-union discrimination claim on procedural grounds, the Baltic District Court, in its decision of 24 May 2002, found that grounds of anti-union discrimination were not established and therefore rejected this allegation. The court nevertheless found that the dismissal of dockers was illegal and ordered their reinstatement. The Committee notes that according to the court, the MTPK administration had no legal grounds for the decision to dismiss the plaintiffs on grounds of the reduction of staff since the port, having transferred to TPK its stevedoring function, property and all workers (only plaintiff dockers – RPD members – were laid off, the remaining workers being transferred) had in effect re-subordinated the production section to TPK and therefore was obliged to offer the plaintiffs continued employment in TPK. The Kaliningrad Provincial Court confirmed this decision on 7 August 2002. The Committee notes from the complainant’s allegations that the court’s decision was not fully implemented and the said 24 dockers were once again dismissed. A new case regarding the new dismissals was filed and is yet to be considered.
9. 702. While noting that the Baltic District Court judgement found that the allegations of anti-union discrimination had not been proven, the Committee notes that, since the court’s decision to reinstate the RPD union members at the re-subordinated production section of the TPK due to the nevertheless illegal grounds for their dismissal, the MTPK administration has persistently refused to fully implement this decision, despite repeated clarifications and confirmation from this and higher courts. In the light of these circumstances, the Committee feels bound to query the motivation behind the employer’s acts, in particular its persistent refusal to reinstate dockers, all of whom happen to be members of the RPD, despite repeated judicial orders in this respect. Further noting the Duma resolution expressing extreme concern about this situation and adding that the question of anti-union discrimination has been reasonably posed, the Committee therefore 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, in particular as concerns the non-transferral to the subordinated production sectors at TPK in accordance with the court’s decision 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. Furthermore, noting that the dockers were once again dismissed and a new case was filed, the Committee requests the Government to keep it informed of the outcome of this case.
10. 703. As concerns the means of redress against alleged acts of anti-union discrimination, the Committee recalls that the existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 742]. Noting that in the present case, the complainant has been addressing the different judicial bodies since 2001 with allegations of anti-union discrimination, which were, until May 2002 rejected on procedural grounds, the Committee considers that the legislation providing for protection against acts of anti-union discrimination is not sufficiently clear. It therefore requests the Government to take the necessary measures, including the amendment of the legislation, in order to ensure that 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.
11. 704. As regards the 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 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, para. 184]. The Committee therefore requests the Government to take the necessary measures so as to ensure that this principle is respected.
12. 705. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.