Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the Government’s report. In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2216 (see 332nd and 334th Reports, November 2003 and June 2004, respectively) and Case No. 2251 (333rd Report, March 2004). The Committee further notes with interest the new Law on Associations of Employers, 2002.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. In its previous observation, the Committee noted that according to section 11 of the Labour Code, restrictions provided for by federal law may apply to managers of organizations, personnel combining jobs, women, persons bearing family responsibilities, youth, state employees and others. It further noted that members of directors’ councils of the organizations (with the exception of members who concluded a labour contract with the organization) and persons whose relationship with an employer is regulated by the civil law contract were excluded from the scope of the Labour Code. On that occasion the Committee requested the Government to indicate whether any restrictions have been imposed on the right to organize of these workers and to provide clarification in respect of those persons considered to be regulated by a civil law contract, who are excluded from the scope of the Code. The Committee notes the Government’s indication that the Labour Code does not limit the right of workers to establish and join trade unions. Referring to section 11 of the Code, the Government points out that the labour legislation applies to all workers in a contractual relationship with employers.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. In its previous comments, the Committee requested the Government to amend section 410 of the Labour Code, which provided that a minimum of two-thirds of the total number of workers should be present at the meeting and the decision to take a strike should be taken by at least half of the number of delegates present, so as to lower the quorum required for a strike ballot. The Committee regrets that no information was provided by the Government in this respect. It therefore once again requests the Government to indicate the measures taken to lower the quorum for a strike ballot, which it considers too high and likely to impede recourse to industrial action, particularly in large enterprises.

The Committee further notes the Government’s indication that section 410 of the Labour Code, which requires workers’ organizations to indicate the duration of a strike, does not, however, prescribe a maximum duration of the strike. The Committee recalls that the mere fact of specifying the duration of the strike, even if it is not binding, impedes the right of workers’ organizations to organize their activities free from government interference. The Committee notes that the Committee on Freedom of Association in Case No. 2251 had also requested the Government to amend section 410 in this respect. The Committee therefore once again requests the Government to take the necessary measures in order to bring its legislation into conformity with the Convention and to keep it informed of the measures taken or envisaged in this respect.

In its previous comments, in the light of the Government’s statement that during a strike, the minimum services are to be ensured in every sector of activity, the Committee asked the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers. The Committee notes the Government’s indication that section 412 of the Code provides for an exhaustive list of organizations and enterprises where the minimum services must be ensured during a strike. These include organizations responsible for safety, health and life of the people and vital interests of the society. As regards the provision in section 412, that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee notes the Government’s statement that any such disagreement is settled following the procedure of collective labour dispute settlement. The Committee notes however that section 412 provides that any disagreement concerning "the establishment of minimum services should be settled by an executive body of the subject of Russian Federation". The Committee therefore once again requests the Government to amend its legislation so as to ensure that any disagreement concerning minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive body and to keep it informed of measures taken or envisaged in this regard.

The Committee notes that in Case No. 2251 the Committee on Freedom of Association requested the Government to indicate the enterprises and services it qualifies as "directly servicing highly hazardous kinds of production or equipment" where the right to strike is prohibited under section 413(1)(b) of the Labour Code. Furthermore, the Committee on Freedom of Association noted that section 17 of the Law on the Federal Railway Transport prohibits the right to strike for railroad employees and section 11 of the Law on Fundamentals of State Employment would appear to prohibit strikes in the public service not only for those who are engaged in the administration of the State, but for many other employees. The Committee, like the Committee on Freedom of Association, requests the Government to amend its legislation so as to ensure that railroad employees, as well as those engaged in the public service, who are not exercising authority in the name of the state, enjoy the right to strike. It requests the Government to keep it informed of the measures taken or envisaged in this respect.

As concerns section 413 according to which the decision on collective disputes during the period of emergency and in essential services, as well as when restrictions are provided for by the federal law, are made by the Government of the Russian Federation, the Committee notes the Government’s statement that in addition to efforts to resolve a dispute with the help of conciliation procedures, the parties could address the Government of the Russian Federation, which would make a decision within ten days. In this respect, the Committee notes that section 413 clearly states that in cases where a strike is prohibited, "the decision on a collective industrial dispute shall be issued by the Government of the Russian Federation". The Committee therefore once again recalls that, if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned which should provide sufficient guarantees of impartiality and rapidity (see General Survey on freedom of association and collective bargaining, 1994, paragraph 164). The Committee therefore requests the Government to review its legislation so as to ensure that in those cases any disagreement concerning a collective dispute is settled by an independent body and not by the Government and to keep it informed of measures taken or envisaged in this regard. Furthermore, recalling that restrictions on the right to strike can only be imposed in essential services and in the case of public servants exercising authority in the name of the State, the Committee once again requests the Government to transmit copies of any federal laws providing for restrictions on strike action.