Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 357, Junio 2010

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

1. 80. The Committee last examined this case at its November 2009 meeting [see 355th Report, paras 1129–1179] and made the following recommendations:
   • (a) The Committee regrets that the Government provided only partial information on the allegations made in this case and urges the Government to be more cooperative in the future.
   • (b) The Committee requests the Government to take the necessary measures in order to encourage the enterprise management and the RPD primary trade union to strive reaching an agreement on access to the workplaces, during and outside working hours, without impairing the efficient functioning of the enterprise. It further requests the Government to take the necessary measures in order to ensure that the trade union’s occupational health and safety inspectors are granted access to the enterprise in order to exercise their rights to oversee the observance of labour, health and safety legislation, conferred on them by the Law on Trade Unions. The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee requests the Government to take the necessary measures in order to ensure that the principle according to which authorities and employers should refrain from any undue interference in trade union internal affairs, including the right to freely elect its representatives, is respected by bodies responsible for granting access to the workplaces to trade union representatives. The Committee requests the Government to keep it informed in this respect.
   • (d) The Committee requests the Government to take the necessary measures in order to ensure that the MMTP management provides the RPD primary trade union with all information on social and labour issues affecting its members, pursuant to the national legislation in force. The Committee requests the Government to keep it informed in this respect.
   • (e) The Committee requests the Government to take the necessary measures to facilitate finding a mutually acceptable solution on the question of premises to be granted to the RPD primary trade union pursuant to the legislative provisions in force and the principles embodied in the Workers’ Representative Recommendation (No. 143). It requests the Government to keep it informed in this respect.
   • (f) The Committee requests the Government to ensure respect for the principle of inviolability of trade union premises.
   • (g) Noting that due to withdrawal of the check-off facility, the RPD primary trade union has been facing serious financial difficulties, further noting that the case filed in 2006 before the district court is apparently still pending, and recalling that a considerable delay in the administration of justice is tantamount in practice to a denial of justice, the Committee requests the Government to take the necessary measures in order to ensure that the check-off system is restored without delay, pursuant to section 377 of the Labour Code and section 28 of the Law on Trade Unions. The Committee requests the Government to keep it informed in this respect.
   • (h) The Committee expects that the Government will take the necessary measures, including through the issuance of relevant instructions to the enterprise management, in order to ensure that the RPD primary trade union can organize its administration and activities for the furtherance and defence of its members without interference by the employer. The Committee requests the Government to keep it informed of the measures taken in this respect.
2. 81. In its communications dated 1 February and 1 March 2010, the Government indicates that on the instructions of the Ministry of Health and Social Development, the Federal Labour and Employment Service and the Murmansk Regional State Labour Inspectorate carried out a supplementary inspection at the enterprise relating to the allegations made in this case.
3. 82. The Government explains that the enterprise is located in the territory of the Murmansk Commercial Sea Port, which is subject to strict security measures. This enterprise operates within a specific legal framework of measures to prevent terrorism and violations of customs legislation. Therefore, the port access is conditional upon obtaining a permit. On 4 July 2006, the issue of refusals to grant permits to the representatives of the trade union was examined by the Leninsky District Court of Murmansk. According to the ruling, in order to prevent unauthorized persons from accessing the port area, the administration of the port is entitled to require organizations to confirm the authority of their representatives who wish to receive permanent permits. The inspection carried out established that to date, the representative of the Russian Trade Union of Dockers (RPD) primary organization did not provide the necessary documentation for the port permits to be issued.
4. 83. With regard to the issue of trade union premises, the Government indicates that in accordance with the 10 July 2006 ruling of the Leninsky District Court of Murmansk and the requirements of current legislation, premises were provided by the employer for the primary union’s activities but the Chairperson of the RPD primary organization rejected the offer of premises offered at the Moryak Hotel building, room 919.
5. 84. With regard to the membership dues, the Government indicates that under section 28 of the Law on Trade Unions and section 377 of the Labour Code, if written declarations are submitted by workers who are members of a trade union, employers must withdraw union dues from workers’ wages and transfer them to the trade union on a monthly basis free of charge. The procedure for these transfers is set out in collective agreements. Employers cannot withhold transfer of such payments. The Murmansk Regional Arbitration Court examined the action brought by the RPD primary organization against the enterprise concerning the transfer of outstanding trade union dues. It was established that the employer did not deduct trade union dues from the wages of union members during the period in question. Thus, the organization had no right to request the membership dues which were not deducted. The court underlined the fact that the provisions requiring the defendant to fulfil the obligations established in law as a means of defence were not referred to by the plaintiff pursuant to section 12 of the Civil Code. The plaintiff did not file a claim for restoration of circumstances prevailing before the occurrence of the violation. The Murmansk Regional Arbitration Court therefore rejected the claim brought by the RPD primary organization.
6. 85. The Committee notes the information provided by the Government. With regard to the access to the workplaces by the representatives of the RPD primary trade union (recommendation (b)), the Committee regrets that the Government merely reiterates its observations, which the Committee has previously examined, and fails to provide information on the measure it has taken in order to encourage the enterprise management and the RPD primary trade union to strive to reach an agreement on access to the workplaces, during and outside workings hours, without impairing the efficient functioning of the enterprise. The Committee therefore once again requests the Government to indicate the measures it has taken to bring the parties together and encourage them to reach a mutually acceptable solution on the issue of access to the workplaces by the RPD representatives, taking into account the security needs of the port. Furthermore, the Committee once again requests the Government to indicate the measures it has taken to ensure that trade union’s occupational health and safety inspectors are granted access to the enterprise in order to exercise their rights to oversee the observance of labour, health and safety legislation, conferred to them by the Law on Trade Unions.
7. 86. On the issue of premises (recommendation (e)), the Committee notes the Government’s indication that the employer granted premises situated in a hotel but that the trade union representatives refused to accept it. In this respect, the Committee recalls that it had previously noted the complainant’s explanation that the union had turned the offer down because the legislation on fire safety forbids setting up offices and operations in hotel buildings and rooms and because these premises were situated in a distant and not easily accessible area of the city. The Committee once again requests the Government to indicate the measures it has taken in order to facilitate finding a mutually acceptable solution on the question of premises to be granted to the RPD primary trade union.
8. 87. With regard to the withdrawal of the check-off facility by the employer (recommendation (g)), the Committee notes that the Government reiterates the information it has previously provided on the 18 July 2006 decision of the Murmansk Regional Arbitration Court. The Committee had previously noted that in August 2006 the complainant filed a lawsuit with the district court requesting it to oblige the enterprise to withdraw and transfer trade union dues. The Committee regrets that no information has been provided by the Government on the outcome of this lawsuit. Recalling that the national legislation requires employers to provide for check-off facilities at their enterprises, the Committee requests the Government to indicate whether the check-off facility was restored at the port and to provide information concerning the case filed in 2006 by the RPD before the district court regarding the withdrawal of the check-off facility.
9. 88. The Committee notes with regret that the Government provides no information as to the measures it has taken to ensure that the MMTP management provides the RDP primary trade union with all information on social and labour issues affecting its members and requests the Government to keep it informed in this respect.