Demande directe (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

The Committee has taken note of the information contained in the Government's first report. It would be grateful for clarification on certain points.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing. The Committee notes that several legislative provisions, and particularly section 238 of the Labour Code, which deal with the rights of the trade union committee of the enterprise, institution or organization and its relations with the administration, seem to maintain a single trade union system at the level of the enterprise, institution or organization. The Committee has always considered a single trade union system imposed directly or indirectly by legislation as incompatible with the right of workers to establish organizations of their own choosing under Article 2 of the Convention. It requests the Government to indicate in its next report the measures taken to guarantee workers the right to join a trade union of their choosing, including, if they so wish, one outside the existing trade union structure.

Articles 5 and 6. The right of workers' and employers' organizations to establish federations and confederations. The Committee notes from the Government's report that the Federation of Trade Unions and the Confederation of Employers are being re-registered. It requests the Government to indicate whether these organizations have been re-registered and to state whether the federations of trade unions and of employers' organizations may constitute several confederations at the highest level if they so wish.

Articles 3 and 10. Right of workers' trade unions to organize their action programmes and activities for the defence of the members' interests without interference from the public authorities. The Committee wishes to draw the Government's attention to certain aspects concerning the right to strike, set out in the Act on the resolution of collective labour disputes, N.1298-XII of 24 February 1993:

1. Section 14(1) and (2) provides that a strike may be declared only to defend workers' occupational interests of an economic and social nature and must not be initiated for political ends. The Committee has always considered that strikes of a purely political nature do not fall within the scope of the field protected by the Convention but recalls that trade unions responsible for defending workers' socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends (see General Survey on freedom of association and collective bargaining, 1994, paragraph 165). It requests the Government to supply it with information on the application in practice of the prohibition set out in section 14(2).

2. Section 20(1) provides that, at the request of the management of an enterprise, the Supreme Court may suspend for 90 days the beginning or continuation of the strike if the latter may cause prejudice to the national economy. The Committee wishes to recall that suspension of the right to strike constitutes an important restriction on an essential means for workers in the defence of their interests and can be justified only in the event of acute national crisis and for a limited period.

3. Sections 24-27 provide for compulsory arbitration on the sole initiative of the Ministry of Labour and Social Welfare if the duration of a strike exceeds 15 days and if it may cause harm to the national economy. The Committee considers that this criterion grants wide powers to the minister to impose compulsory arbitration.

4. Section 28(d) prohibits strikes in several sectors, particularly in public urban and rail transport, public aviation, communications and the energy sector. The Committee is of the view that restrictions or prohibitions on the right to strike should be restricted to essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). The Committee considers that the prohibition of strikes in the public urban and rail transport sectors and civil aviation is not compatible with the principles of freedom of association and should be repealed. Furthermore, with regard to the communication and energy sectors, the Committee recalls that if strikes are prohibited in these sectors, legislation should provide a compensatory mechanism for the settlement of labour disputes. In view of the absence of a compensatory mechanism for settling disputes in section 28, the Committee requests the Government to indicate in its next report the measures taken or envisaged to allow workers in these sectors, deprived of an essential means in the defence of their economic and occupational interests, to have their collective claims heard and to bring the legislative provisions into conformity with the principle set out above.

5. Sections 21(3) and 23(5) provide for the material responsibility of the organizers of a strike initiated or continued illegally. In the Committee's view, this responsibility may prove costly and disproportionate if the acts involved constitute recourse to a strike for the defence of workers' interests pursuant to the principles of freedom of association.

6. The Committee also requests the Government to indicate whether a similar provision to section 190(3) of the Criminal Code of the former USSR, which contains restrictions on the rights of workers to take part in collective action aimed at disrupting transport or public and social establishments, accompanied by terms of imprisonment of up to three years is still in force and, if so, to envisage the repeal of this provision.

The Committee requests the Government to inform it of the measures envisaged to amend section 238 of the Labour Code and sections 14(2), 20(1), 21(3), 23(5), 24 and 28(d) of the Act on the settlement of collective labour disputes, N.1298-XII, in order to bring its legislation into greater conformity with the Convention and requests it to supply information in its next report on the practical application of the Convention. It also requests the Government to send it a copy of the Bills concerning trade unions and employers' organizations which it mentions in its first report, as well as a copy of the Penal Code currently in force.