Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments made by the Georgian Trade Union Confederation (GTUC) in a communication dated 27 August 2008, the observations made thereon by the Georgian Employers’ Association (GEA), as well as the Government’s reply. The Committee also notes that the GTUC submitted allegations referring to the same matters to the Committee on Freedom of Association. It further notes the comments of the International Trade Union Confederation (ITUC) submitted in a communication dated 26 August 2009 referring to the same issues as well as to the matters previously raised by the Committee.

The Committee recalls that it had previously expressed its concern at the several provisions of the Labour Code adopted in 2006. In particular, the Committee considered that the Labour Code did not provide for an adequate protection against anti-union discrimination and meaningful promotion of collective bargaining. It notes in this respect, the discussion that took place in the Conference Committee on the Application of Standards in June 2008, which considered that a tripartite round table to address these issues in a context of full dialogue together with ILO technical assistance, could facilitate further progress on matters relating to the promotion of collective bargaining and the protection of the right to organize, both in law and in practice.

The Committee notes from the Government’s report that a memorandum was signed between the Ministry of Health, Labour and Social Affairs (MoHLSA), the GTUC and the GEA with a view to institutionalizing social dialogue in the country. Since then, the social partners have been regularly holding sessions to discuss issues concerning the labour legislation with an emphasis on the issues of compliance with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Convention No. 98. The Committee further notes with interest that, in line with the conclusions of the Conference Committee, over the course of 2009, the ILO has been providing technical support to the tripartite constituents to advance the process of dialogue and the review of the labour legislation. The Committee further notes with interest the holding in October 2009 of an ILO tripartite round table in Tbilisi which discussed the current status of the national labour legislation, application of Conventions Nos 87 and 98 and promotion of tripartism in Georgia. The Committee also notes with interest Decree No. 335 of 12 November 2009 issued by the Prime Minister of Georgia, which formalized and institutionalized the National Social Dialogue Commission, as well as the creation of a tripartite working group to review and analyse the conformity of the national legislation with the findings and recommendations of the Committee and to propose the necessary amendments. The Committee hopes that any proposed amendments will take into account its following comments and requests the Government to provide information on the developments in this regard.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee had previously noted that section 11(6) of the Law on trade unions and section 2(3) of the Labour Code prohibited, in very general terms, anti-union discrimination, and did not appear to constitute sufficient protection against anti-union discrimination at the time of recruitment of workers and at the time of termination of their employment. In particular, the Committee had noted that, pursuant to section 5(8) of the Labour Code, an employer was not required to substantiate his/her decision for not recruiting an applicant and considered 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 had also 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 an employee, provided that the employee was given one month’s pay, unless otherwise envisaged by the contract. The Committee considered that, in light of the absence of explicit provisions banning dismissals by reason of union membership or participating in union activities, as well as the absence of provisions regulating cases of anti-union dismissals, the Labour Code did not offer sufficient protection against anti-union dismissals. The Committee notes that the Government refers to the general prohibition of anti-union discrimination provided for in article 26 of the Constitution, section 11(6) of the Law on trade unions and section 2(3) of the Labour Code and considers that the legislation is in compliance with the Convention. The Government indicates nevertheless that the tripartite working group will review the legislation as necessary. With regard to the protection at the time of recruitment, the Committee is of the opinion that, since it may often be difficult, if not impossible, for a worker to prove that he/she has been the victim of an act of anti-union discrimination, legislation could provide ways to remedy these difficulties, for instance by stipulating that grounds for the decision of non-recruitment should be made available upon request. With regard to the termination of employment, the Committee considers that legislation which allows the employer in practice to terminate the employment of a worker on condition that he/she pay the compensation provided for by law in all cases of unjustified dismissal, without any specific protection aimed at preventing anti-union discrimination, is insufficient under the terms of Articles 1 and 3 of the Convention. The Committee therefore trusts that the necessary measures to revise sections 5(8), 37(d) and 38(3) of the Labour Code will soon be taken so as to ensure that the Labour Code provides for an adequate protection against anti-union discrimination taking into account the principles above. It requests the Government to provide information on the measures taken or envisaged in this respect.

The Committee notes article 42 of the Code of Administrative Breaches and section 142 of the Criminal Code imposing penalties for violation of the labour legislation. The Committee requests the Government to indicate the form of compensation available to workers, victims of acts of anti-union discrimination, including dismissals, transfers, downgrading, etc.

Article 2. Protection of workers’ organizations against acts of interference by employers. With regard to the Committee’s previous request to provide for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference, 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.

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 notes the Government’s indication that an employer is authorized to introduce internal operation rules only if working conditions are not regulated by a labour agreement (either individual or collective) and that if working conditions are regulated by a labour agreement, such an agreement prevails over any other internal rules.

The Committee had previously noted that sections 41– 43 of the Labour Code seemed to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers, including as few as two workers. The Committee notes that the Government points out that Convention No. 98 does not stipulate that collective agreements must prevail over individual agreements and confirms that, under the national legislation, agreements concluded with trade unions and agreements with non-unionized workers are treated equally. The Government emphasizes that, under the national legislation, the right to bargain collectively is not solely a trade union prerogative; other groupings of employees can also engage in negotiations with an employer. The Committee finds it difficult to reconcile the equal status given in the law to these two types of agreement with the ILO principles on collective bargaining, according to which the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations should be encouraged and promoted, with a view to the regulation of terms and conditions of employment by means of collective agreements. If, in the course of collective bargaining with the trade union, the enterprise offers better working conditions to non-unionized workers under individual agreements, there is a serious risk that this might undermine the negotiating capacity of the trade union and give rise to discriminatory situations in favour of the non-unionized staff; furthermore, it might encourage unionized workers to withdraw from the union. The Committee draws the Government’s attention to the Collective Agreements Recommendation, 1951 (No. 91), which emphasizes the role of workers’ organizations as one of the parties in collective bargaining. Considering that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, runs counter to the principle that negotiation between employers and organizations of workers should be encouraged and promoted, the Committee requests the Government to take the necessary measures in order to amend its legislation so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff. The Committee requests the Government to indicate any developments in this regard.

The Committee notes the information provided by the Government according to which most of the Georgian state institutions and companies have collective agreements with trade unions. The Committee requests the Government to indicate the number of collective agreements concluded in the country within the next reporting period and to provide statistics in this regard in relation to the private sector.