Demande directe (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Arménie (Ratification: 2006)

Autre commentaire sur C087

Observation

Demande directe

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Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization. The Committee had previously noted that pursuant to article 28 of the Constitution of the Republic of Armenia, freedom of association, including the right to form and join trade unions, may be restricted in a manner prescribed by law for employees of the Prosecutor’s Office, as well as judges and members of the Constitutional Court. The Committee requested the Government to indicate whether these categories of workers can establish and join organizations of their own choosing. The Committee notes that in its report, the Government indicates that such employees do not enjoy the right to form trade unions. The Committee further notes that section 6 of the Law on Trade Unions (as amended in 2006) stipulates that public servants employed in the Prosecutor’s Office, police, national security service, as well as judges and members of the Constitutional court cannot be members of trade union organizations. Recalling that pursuant to Article 2 of the Convention, these categories of workers should enjoy the right to form and join organizations for the purpose of furthering and defending their occupational and economic interests, the Committee requests the Government to take the necessary measures to amend its legislation so as to ensure that employees of the Prosecutor’s Office, judges and members of the Constitutional Court, as well as civilians employed by the police and security service can establish and join organizations of their own choosing. It requests the Government to indicate all measures taken or envisaged in this respect.

The Committee notes that pursuant to section 6 of the Law on Trade Unions, a signed employment contract with a given employer is a perquisite for trade union membership. The Committee recalls that by virtue of Article 2, workers without distinction whatsoever shall have the right to establish and join organizations of their own choosing. The Committee considers that the criterion for determining the persons who should enjoy this right should not be based on the existence of an employment relationship, which is often non-existent, for example in the case of self-employed workers or those who practice liberal professions, or in the informal sector. The Committee therefore requests the Government to indicate in its next report any measures taken or envisaged to ensure the rights afforded by the Convention to the abovementioned categories of workers, i.e. workers who for various reasons may not have a formal contract of employment.

The Committee had previously noted section 4(1) and (2) of the Law on Employers’ Organizations, which provides for the number of employers required to form employers’ organizations at the national level (over half of employers’ organizations operating at the sectoral and territorial levels), sectoral level (over half of employers’ organizations operating at the territorial levels) and territorial level (majority of employers in a particular administrative territory or employers’ organizations from different sectors in a particular administrative territory). The Committee had considered that the minimum membership requirements as set out in section 4 of the Law are too high given that they would appear to ensure that in fact there is only one national level organization, one organization per sector and one territorial level employers’ organization per territory or a particular sector in the territory. The Committee had recalled in this respect that the minimum membership requirement should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee notes the Government’s indication that the issue of amending the Law on Employers’ Organizations will be discussed with the relevant social partners.

The Committee notes that section 2 of the Law on Trade Unions sets out similar prerequisites for federations of trade unions at the territorial, sector and national levels for the purpose of representing workers’ labour, professional, social and economic rights and interests, and protection in labour relations with employers’ organizations and state bodies by requiring more than half of trade unions which include the majority of workers at the respective level. The Committee expresses the hope that the Government will take the necessary measures in order to amend the Law on Employers’ Organizations and the Law on Trade Unions in consultation with the social partners so as to lower the minimum membership requirements set for establishing organizations at the national, sectoral and territorial levels and to ensure that more than one organization can be established at each level. It requests the Government to provide in its next report information on the measures taken or envisaged in this respect.

Article 3. Right of organizations to draw up their constitutions and rules and to organize their administration in full freedom. The Committee had previously noted that sections 13(2)(1) and 14 of the Law on Employers’ Organizations regulated in detail matters that should be decided upon by organizations themselves (such as the obligatory use of the words “employers’ union” for all employers’ organizations and “Armenia” for a national organization and the rights and responsibilities of the congress of an employers’ organization). The Committee had therefore requested the Government to consider amending these provisions so as to ensure that only formal requirements are laid down by the national legislation with regard to charters of organizations. The Committee notes the Government’s indication that this issue will be discussed with the relevant social partners. The Committee trusts that the Government’s next report will contain information on the measures taken to amend the abovementioned provisions.

Right to strike. The Committee had previously noted section 74(1) of the Labour Code which requires a vote by two-thirds of an organization’s (enterprise’s) employees to declare a strike. If a strike is declared by a subdivision of an organization, a vote by two-thirds of employees of that subdivision is required, but if such a strike hampers the activities of other subdivisions, the strike should be approved by two-thirds of employees of the subdivision, which may not be less than half of the total number of employees of an organization. The Committee considered that the requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and recalled in this respect, that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee had therefore requested the Government to take the necessary measures in order to amend section 74 of the Labour Code so as to lower the required majority and to ensure that account is taken only of the votes cast. The Committee notes the Government’s indication that section 74(1) has been amended by adding the following wording: “in case of absence of a trade union in the organization, the responsibility for declaring a strike by the decision of the staff meeting (conference) is transferred to the relevant branch or regional trade union”. The Committee understands that the new amendment deals with the situation of absence of a union, but does not address the issue previously raised by the Committee. The Committee therefore reiterates its previous requests and expresses the hope that the Government’s next report will contain information on the measures taken or envisaged to amend section 74 of the Code so as to bring it into conformity with the principle above.

The Committee had previously noted section 77(2) of the Labour Code providing that minimum services are determined by the corresponding state and local self-governance entities and requested the Government to take the necessary measures to amend this provision so as to ensure that the parties are able to participate in the definition of what constitutes a minimum service. The Committee notes the Government’s indication that the issue of amending section 77 of the Labour Code will be further examined in the framework of other possible amendments to this piece of legislation. The Committee expresses the hope that the Government’s next report will contain information on the measures taken or envisaged in this respect.

Article 4. Dissolution of organizations. The Committee had previously requested the Government to clarify the meaning of paragraph 3 of section 20 of the Law on Employers’ Organizations, providing for liquidation and restructuring of employers’ organizations, according to which “restructuring of an employers’ organization shall not be allowed”. The Committee notes that paragraph 2 of section 11 of the Law on Trade Unions is to the same effect. The Committee notes the Government’s indication that the issue of amending the Law on Employers’ Organizations will be discussed with the relevant social partners. The Committee expresses the hope that the Government’s next report will contain information on the meaning of the abovementioned provisions and their application in practice.

The Committee further once again requests the Government to provide concrete examples of circumstances where the property of a liquidated organization could be rendered to the State, pursuant to section 20(4) of the Law.