Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report. It further notes the comments of the International Trade Union Confederation (ITUC) and of the Georgian Trade Union Confederation (GTUC) which refer to the adoption of the Labour Code without prior consultation with trade unions and insufficient protection against acts of anti-union discrimination and interference, and insufficient regulation of collective bargaining matters.

The Committee notes the Government’s statement that representatives of trade unions and employers’ organizations were involved in the discussion of the Labour Code.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. Acts covered. The Committee had noted that section 11(6) of the Law on trade unions and section 2(3) of the new Labour Code prohibited, in very general terms, anti-union discrimination, and did not appear to constitute sufficient protection against anti-union discrimination: (i) at the time of recruitment of workers; and (ii) at the time of termination of their employment.

(i)    Recruitment. The Committee had noted that, pursuant to section 5(8) of the Labour Code, the employer was not required to substantiate his/her decision for not recruiting the applicant. Considering that the application of this section in practice might result in placing on a worker an insurmountable obstacle when proving that he/she was not recruited because of his/her trade union activities, the Committee requested the Government to amend section 5(8) of the Code. The Committee welcomes the Government’s indication that discussions are taking place on reformulating this provision. The Committee expects that this provision will be soon amended so as to provide adequate protection against anti-union discrimination at the time of hiring.

(ii)    Termination of employment. The Committee had noted that, according to sections 37(d) and 38(3) of the Code, the employer had a right to terminate a contract at his/her initiative with his/her employee provided that the employee was given one month’s pay, unless otherwise envisaged by the contract. While the Government refers to the general prohibition of anti-union discrimination provided for in section 11(6) of the Law on trade unions, in light of the absence of explicit provisions banning dismissals by reason of union membership or participating in union activities, as noted above, the Committee considers that the legislation is unclear as to the regulation of cases of anti-union dismissals and does not offer sufficient protection against anti-union dismissals as called for by Articles 1 and 3 of the Convention. The Committee requests the Government to amend its legislation so as to ensure that there is a specific prohibition of anti-union dismissals. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

Means of redress and sanctions. With regard to the Committee’s previous request to provide for sufficiently dissuasive sanctions in cases of anti-union discrimination, the Committee notes the Government’s statement that section 42 of the Code of Administrative Violations, punishes violations of labour legislation and labour protection rules by a penalty equivalent to a minimum of 100 times the labour remuneration and that the same violation committed within one year following the imposition of an administrative penalty is punishable by a penalty equivalent to 200 times the labour remuneration. The Committee requests the Government to indicate the relevant provisions regulating the procedure under the Code of Administrative Violations, its duration and the possibilities of means of redress available to workers, victims of acts of anti-union discrimination, including dismissals, transfers, downgrading, etc. (particularly, considering the GCTU’s allegation of absence of procedures of redress in the national legislation). The Committee further notes that the Government indicates that, according to section 142 of the Criminal Code, “violations of the equality based on membership of any public association” is punishable by imprisonment for a period of up to two years. The Committee observes, however, that the Criminal Code (1999) at its disposal does not refer to discrimination based on membership of an association. It requests the Government to provide clarifications in this respect.

Article 2. Protection of workers’ organizations against acts of interference by employers. The Committee had previously noted that Georgian legislation prohibited acts of interference from employers in trade union activities. However, no express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference, existed in legislation. The Committee once again requests the Government to take the necessary measures in order to adopt specific legislative provisions in this respect.

Article 4. Collective bargaining. The Committee had previously noted that according to section 13 of the Labour Code, the employer (unilaterally) is authorized to specify the duration of a business week, the daily schedule, shifts, the duration of breaks, the time and place of remuneration payment, the duration of and the procedure for granting a leave and unpaid leave, the rules for complying with labour conditions, the type and the procedure for work-related incentives and responsibilities, the procedures for consideration of complaints/applications and other special rules subject to the specifics of the business of the organization. The Committee had further noted Chapter XII of the Code (sections 41–43), which concerns collective labour relations. Under section 41(1), “a collective contract shall be concluded between an employer and two or more employees”. According to section 42(1) and (3), for the purposes of concluding, changing or terminating a collective contract, or for the purpose of protecting the employees’ rights, the unions of employees act through their representatives, defined as any physical person. Furthermore, in accordance with section 43(2), an employee may conclude individual and/or several collective contracts with one employer. Pursuant to subsections (4) and (5) of the same section, if one of the parts of the contract is annulled on the initiative of either party, this could cause the termination of labour relations pursuant to the Labour Code; and the existence of collective contracts does not limit the right of the employee or the employer to terminate the contract. The Committee considers that sections 13 and 41–43 read together are in contradiction with the notion of collective agreements in the sense of Convention No. 98, i.e. agreements regulating terms and conditions of employment negotiated between employers or their organizations and workers’ organizations; moreover, the legislation seems to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers (sections 41–43). Furthermore, the Committee considers that with the Law on trade unions containing one general provision on the right of trade unions to collective bargaining, and the Law on collective contracts and agreements repealed, it is clear that collective bargaining is not sufficiently regulated (section 41 even stipulates that collective agreements follow the same principles as individual agreements). The Committee notes that the Government recognizes the need to improve the legislation, as Georgia does not have a collective agreement tradition and there are not too many collective agreements concluded in practice. Considering that the provisions of the new Labour Code do not promote collective bargaining as called for by Article 4 of the Convention, the Committee requests the Government to take the necessary measures, either by amending the Labour Code or by adopting specific legislation on collective bargaining, so as to promote collective bargaining and to ensure the regulation by legislative means of the right of employers’ and workers’ organizations to bargain collectively in full conformity with Article 4 of the Convention. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

The Committee notes the Government’s indication that the Ministry of Labour, Health and Social Affairs has prepared draft amendments to the Labour Code so as to bring it into closer conformity with international labour standards; the draft amendments shall be submitted to the Parliament pursuant to the procedure provided for in the national legislation. The Committee hopes that all legislative modifications requested above will be reflected in the draft amendments to the Labour Code and requests the Government to keep it informed of the developments in this regard. The Committee recalls that the technical assistance of the Office is at its disposal.