Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 356, Mars 2010

1. 734. The complaint is contained in communications from the Georgian Trade Unions Confederation (GTUC) dated 24 July and 26 August 2008, and 11 March 2010. The International Trade Union Confederation (ITUC) associated itself with the complaint in a communication dated 29 September 2008.
2. 735. The Government’s reply is contained in a communication dated 7 November 2008. The Government sent a further communication on 19 February 2010.
3. 736. Georgia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 737. In its communication dated 24 July 2008, the GTUC alleges that certain provisions of Georgian legislation cause proliferation of anti-union harassment, dismissals of trade union activists and closing of trade union offices.
2. 738. Specifically, the GTUC criticizes sections 37(d) and 38(3) of the Labour Code adopted in May 2006. Section 37(d) stipulates that an invalidation of the employment agreement is a ground for termination of the employment relations. Section 38(3) states that in case of termination of the employment agreement upon the initiative of an employer, an employee shall receive severance pay for not less than one month. According to the complainant, sections 37(d) and 38(3) allow an employer to terminate employment contracts without notice for any reason or for no reason. These sections provide the employer with the unlimited right to terminate labour contracts without any explanation whatsoever. The GTUC had protested against this section, including by organizing protest strikes, and on several occasions made legislative initiatives. The GTUC argues that the abovementioned provisions leave space for trade union discrimination and that the Labour Code as a whole does neither sufficiently protect labour rights nor prevent acts of anti-union discrimination.
3. 739. The complainant refers to the following observations of the Committee of Experts on the Application of Conventions and Recommendations regarding Georgia’s labour legislation:
4. 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 ... the Committee [of Experts] 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 ... .
5. 740. The GTUC further submits allegations of violation of trade union rights at Poti Sea Port and BTM Textile.
6. 741. With regard to the first enterprise, the complainant explains that Poti Sea Port is one of the largest enterprises in Georgia, employing almost 1,200 workers. At the time of the alleged violations of trade union rights, it was mainly owned by the Georgian Government (the company was privatized in May 2008 and is now a free industrial zone). According to the complainant, the Dockers’ and Seafarers’ Union at Poti Sea Port exists since 2000 and is affiliated with the Adjara branch of the GTUC.
7. 742. The GTUC relates that on 15 October 2007, the trade union of the Port organized a
8. 45-minute protest action during lunch break, demanding that the manager participate in collective bargaining with the union on the issues of labour conditions and the expected privatization of the Port. On 19 October 2007, the management of the enterprise sealed the office of the union. On 22 October 2007, a security guard at the Port did not permit trade union leaders to enter their office. On 23 October 2007, the General Director terminated the employment relation with the following nine trade unionists: Tengiz Jaiani, Zaza Torchinava, Mamuka Shengelia, Sergo Tirkia, Kakhaber Simonia, Giorgi Gurjia, Khvicha Gogia, Vakhtang Tirkia and Merab Romanishvili. The complainant is convinced that the enterprise dismissed these trade unionists for their trade union activities because: (1) only the heads of primary trade union organizations and active trade unionists were terminated; and (2) the dismissals occurred just days after the protest actions and the closing of the trade union’s office. On 13 November 2007, the Dockers’ and Seafarers’ Union of Georgia (DSUG) submitted a lawsuit to the Poti City Court, requesting reinstatement, remuneration for coercive suspension, invalidation of the management’s ordinance to seal the trade union office and a decision enabling the trade union to exercise its statutory authority. The DSUG asked the court to apply ILO Conventions Nos 87 and 98. On 21 March 2008, the court rejected the lawsuit and refused to reinstate workers, explaining that the Labour Code did not require the employer to substantiate decisions to terminate labour contracts.
9. 743. The complainant appealed this decision on the following grounds. Firstly, section 2 of the Labour Code prohibits any discrimination on the basis of trade union membership. Secondly, the court failed to apply section 23 of the Law on Trade Unions, which prohibits dismissing an employee who is an elected shop steward or a trade union officer without consent of the trade union. The court considered that pursuant to the Labour Code, the employer had the right to terminate employment relations on the basis of the termination of the employment contract. The complainant is of the opinion, however, that the Labour Code’s scope of application is limited to regulating employment relations that are not otherwise regulated by a specific legislation or by international treaties signed by Georgia. In this respect, the Law on Trade Unions is a more specific legislation than the Labour Code. Finally, the court failed to apply national legislation in line with ILO Conventions Nos 87 and 98.
10. 744. On 30 June 2008, the Kutaisi Court of Appeal upheld the decision of the Poti City Court and referred to the employers’ unrestricted right to terminate employment relations pursuant to articles 37 and 38 of the Labour Code. The complainant provides a copy of this decision. According to the court:
11. [i]t is established that at the moment of the dismissal of the employees no written collective agreement between the Poti Sea Port and the trade union existed. According to the explanations of the claimant himself, in January 2007, the Director-General of the Poti Sea Port informed the union committee that he was unilaterally terminating the agreement. [In these circumstances] (i.e. the reality that there exists no collective agreement between the parties), the Court holds groundless the opinion of the claimants to the effect that the employer had no right to dismiss union activists without prior consent of the trade union.
12. In accordance with paragraph 5 of section 11 of the Law on Trade Unions, a labour contract with an employee, who is a member of a trade union, can be terminated upon an employer’s initiative with a prior agreement of a trade union committee concerned only in accordance with the legislation and in cases provided for by a collective agreement; and pursuant to part 3 of section 23 of the same Law, it shall be inadmissible to dismiss or transfer to a new employment a chairperson, member or organizer of an elected labour organization without prior consent of the labour organization concerned, except for the cases provided for by law.
13. The Court indicates that the Law referred to is enacted in 1997, while the Labour Code of Georgia, sections 37 and 38 of which provide the legal basis for the termination of labour relations, is enacted in 2006.
14. The Court explains that the Labour Code of Georgia is a special and newer legislation, governing the labour and concomitant relations on the Georgian territory, unless they are governed otherwise by some other special law or international treaties entered into by Georgia. The issues, which are not governed by this Code or some other special law, are governed by the Civil Code of Georgia. In accordance with part 2 of section 26 of the Georgian Law on Normative Acts, the Labour Code of Georgia must be applied when solving the dispute under consideration.
15. As far as the invalidation of the order concerning the termination of labour relations is the subject of the dispute under consideration, consequently, the provisions of the Labour Code must be applied in order to solve this dispute, since the Code is a special legislation regulating the basis for the abrogation of the contract and the termination of labour relations between the employer and the employee.
16. The Court explains that the said Code does not provide for the consent of third parties, including trade unions, in cases of termination of labour relations with employees. Consequently, the appealed orders of the Director-General of the Poti Sea Port cannot be invalidated pursuant to the Law on Trade Unions as far as the termination of labour relations is regulated only by the Labour Code.
17. …
18. The Court cannot agree with the opinion of the appellants that the dismissed employees were subjected to discrimination prohibited under the labour legislation, as far as the claimants could not indicate any evidence in proof of the said factual circumstance.
19. …
20. The claimants have presented to the Court no proof which could attest that it was the membership of and activity within the trade union that resulted in the persecution of the claimants, in the creation of debasing and humiliating environment for them and in putting them into the state which deteriorated their plight as compared with other individuals under similar conditions. The statements to the effect that the claimants were summoned to the headquarters of the administration, were visited at home, intimidated and blackmailed are only allegations. The claimants have not presented to the Court any witness who could at least attest to the fact that any claimant was really visited at home and intimidated. Statement to the contrary is made by the adversary party, which explains that no such actions on the part of the administration have taken place.
21. …
22. The Labour Code of Georgia, in conformity with paragraph 2 of Article 30 of the Georgian Constitution, provides for the right of an owner at his/her discretion to employ or dismiss the employees, which means that an owner shall prolong labour relations with the candidates who are agreeable and desirable for him/her.
23. The said circumstances cannot be deemed to be discrimination.
24. …
25. It is significant that, according to the explanation of the representatives of the defendant, at the moment of the dismissal of the claimants and other persons, the administration did not know who of the 30 dismissed employees were members of the trade union.
26. Based on the aforesaid, the Court holds that the allegation of the claimants about their discrimination is groundless, which rules out the possibility of the claim to be satisfied.
27. 745. The complainant indicates that an appeal against this decision will be lodged before the Supreme Court.
28. 746. The complainant states that after the trade union leaders undertook a five-day hunger strike, the trade union office was reopened. The union, however, remains significantly weakened because it continually loses members, who have also stopped paying their membership fees.
29. 747. In November 2007, the President of the GTUC, Mr Irakli Petriashvili, met with the State Minister for Economic Reforms and requested him to intervene, but the Minister refused and referred the GTUC to the courts. The complainant therefore considers that the Minister favours the infringements of ILO Conventions. The complainant also states that the Georgian Government is fully informed on the matter and that it has received communications not only from the GTUC, but also from the General Secretary of the ITUC and the General Secretary of the European Trade Union Confederation reminding the Government of the illegality of anti-union harassment.
30. 748. With regard to the second enterprise, the complainant alleges that BTM Textile, which employs 500 women workers in the Khelvachauri district of the Autonomous Republic of Adjara, dismissed nine officials of a newly formed trade union. According to the complainant, on 16 March 2008, 250 employees established a trade union that joined the Adjara branch of the GTUC. On the same day, nine women workers, who had been working at the enterprise since 2007, were elected to the trade union committee. On 10 April 2008, in a meeting with the General Director of the enterprise, the GTUC’s Adjara branch informed the employer that the trade union had been formed. On 11 April 2008, the management of the enterprise dismissed all nine trade union committee members on the basis of section 37(d) of the Labour Code without providing any further information. The affected women are: Manana Sushanidze, the head of the trade union, Nargiz Evgenidze, Mzia Murvanidze, Rusiko Kokobinadze, Rusiko Abashidze, Iamze Tsintsadze, Neli Tsintsadze, Tamila Beridze and Darejan Kharabadze. Because nobody else was dismissed, the complainant contends that the company dismissed the workers solely for their trade union activities. The dismissed workers were unable to obtain any explanation for losing their jobs; the General Director refused any explanation, citing section 37(d) of the Code.
31. 749. The complainant further alleges that the company violated the principles of ILO Conventions Nos 87 and 98 and the Labour Code, which prohibit any discrimination on the basis of trade union membership. The Adjara branch of the GTUC therefore challenged the dismissals in Khelvachauri City Court and court hearings were scheduled to begin in July 2008.
32. 750. According to the complainant, the nine dismissed workers remain unemployed and trade union members now only rally outside the office. Workers also continue to be intimidated and threatened with dismissal unless they discontinue their trade union activities.
33. 751. The complainant states that in April 2007, the dismissed workers had asked the Deputy Chairman of the Board of Municipal Administration of Khelvachauri for help. The Deputy Chairman, however, declared that dismissing the workers was the right decision. The complainant thus considers that the local government violated Convention No. 87. The Adjara branch of the GTUC also met with the Adjara Ministry of Economic Reforms. According to the GTUC, the Minister admitted that the actions of the enterprise contradicted ILO Conventions and that the management’s actions were inappropriate. The Minister promised to address this case of anti-union behaviour but, according to the complainant, he has not followed through on this promise so far.
34. 752. In its communication dated 11 March 2010, the GTUC informs that a meeting to discuss the problems in the field of industrial relations, labour legislation and the cases of violation of trade union rights currently pending before the Committee on Freedom of Association took place on 10 March 2010 between the GTUC President, the Prime Minister of Georgia and its Chief Adviser. The parties have agreed to continue working on the legislative issues. With regard to the alleged violations of trade union rights, the Prime Minister has instructed in writing the Minister of Labour, Healthcare and Social Protection and the Chief Adviser to the Prime Minister to investigate and discuss the issues concerning anti-union discrimination at the earliest tripartite Social Dialogue Commission, as well as the possibilities of an alternative employment of workers allegedly dismissed from Poti Sea Port.
35. B. The Government’s reply
36. 753. In its communication dated 7 November 2008, the Government states that its reply is based on the information it has obtained from the parties involved, i.e. the complaint and the management of Poti Sea Port and BTM Textile enterprises.
37. 754. With regard to the first enterprise, the Government concurs that there was a dispute between the administration and the Port trade union. According to the Government, the union made several “inappropriate” requests which were “impossible” to satisfy. Specifically, the union requested a provision of a life-long monthly payment in the amount of 100 Lari (GEL) (US$60) for Port workers retired in 2007; a 100 per cent increase of workers’ salaries before the company’s privatization; and three years guaranteed employment for the workers hired before 15 October 2007.
38. 755. The Government indicates that labour contracts with nine workers were terminated because the management was not satisfied with the way they were fulfilling their tasks and duties and that the dismissals were not based on the workers’ trade union membership or activities. The dismissals were made in accordance with section 37(d) of the Labour Code. The Government also indicates that the strike carried out on 15 October 2007 was not preceded by a token strike (as required by sections 49(4) and (6) of the Labour Code).
39. 756. The Government explains that the trade union office was sealed off by the administration because the collective agreement, which gave the union the right of access to the office, was terminated on 1 January 2007. The union was informed of the termination of the collective agreement signed in 2004 by a letter dated 8 December 2006. Due to the lack of interest expressed by the trade union, no new collective agreement has been signed at the Port. In these circumstances, there was no legal basis for the primary trade union organizations to use the Port property.
40. 757. With regard to the refusal of the State Minister for Economic Reforms to intervene on the GTUC’s behalf, the Government emphasizes that it is illegal for anyone to intervene in the Court’s decision or influence the Court and judges.
41. 758. The Government further indicates that the dismissals of nine employees from BTM Textile were not related to their trade union membership and were done in conformity with section 37(d) of the Labour Code. According to the Government, the company does not practice anti-union discrimination. Indeed, three members of the trade union committee are still employed. In addition, the Government indicates that the union activists have organized a strike without a prior token strike as required by the Labour Code, and held a demonstration seeking to recruit new members without informing the company. It indicates that none of the 500 employees showed any interest in becoming members of the union.
42. 759. In its communication dated 19 February 2010, the Government requests the Committee to postpone the discussion of this case.

C. The Committee’s conclusions

1. 760. The Committee notes that, in the present case, the complainant trade union alleges that: (1) the Labour Code does not sufficiently protect against anti-union discrimination; (2) the Poti Sea Port’s management, while it was still owned by the Government, refused to bargain collectively with the union, sealed the office of the trade union for some time and dismissed nine trade unionists for their trade union activities after a workers’ protest demanding the management to participate in collective bargaining; (3) BTM Textile dismissed all members of the trade union committee for their trade union activities the day after the company was informed of the founding of the union; (4) workers at BTM Textile are threatened with dismissal unless they discontinue their trade union activities; and (5) the Government had failed to provide redress for any of these actions. While noting the Government’s request to postpone the discussion of this case, the Committee considers that it has sufficient information to pursue its examination thereof.
2. 761. With regard to the allegations of legislative provisions setting out an unlimited right to terminate labour contracts without reason (sections 37(d) and 38(3) of the Labour Code), the Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and that it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. The Committee further recalls the general principle according to which, it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities. One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee considers that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. If trade union leaders are dismissed without an indication of the motive, the Government should take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts. Finally, the Committee recalls the importance it attaches to the principle that legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 771, 791, 799, 807 and 813].
3. 762. In light of the interpretation given by the courts to sections 37(d) and 38(3) of the Labour Code and their apparent negation of any other legislative protection against anti-union discrimination, the Committee is concerned that the current legal framework in the country may well be insufficient for ensuring adequate protection against anti-union discrimination. In these circumstances, the Committee requests the Government, in full consultation with the social partners concerned, to take the necessary measures to amend the Labour Code so as to ensure specific protection against anti-union discrimination, including anti-union dismissals, and to provide for sufficiently dissuasive sanctions against such acts. Along the same lines, observing the difficulty of contesting an alleged anti-union dismissal if there is no obligation to provide a motivation for that dismissal, the Committee requests the Government to take the necessary measures to ensure that workers may obtain an explanation as to the grounds for their dismissal.
4. 763. The Committee understands that the ILO has been providing technical support to the Georgian tripartite constituents to advance the process of dialogue and the review of the labour legislation. The Committee notes that in October 2009, an ILO tripartite round table was held in Tbilisi to discuss the current status of the national labour legislation, implementation of Conventions Nos 87 and 98 and promotion of tripartism in Georgia.
5. 764. The Committee takes note from the information provided to the Committee of Experts on the Application of Conventions and Recommendations of the establishment of 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 of Experts and to propose the necessary amendments. The Committee expects that all matters relating to the application of the freedom of association principles and the relevant Conventions and that, in particular, the issue of protection against anti-union discrimination will be dealt with by the tripartite working group in the very near future and that the group will be able to formulate appropriate amendments to the Labour Code so as to take into account the principles above. It urges the Government to keep it informed in this respect.
6. 765. The Committee notes the complainant’s allegations of violations of trade union rights at Poti Sea Port and BTM Textile and the Government’s reply thereon. With regard to the first enterprise, the Committee notes that according to the information submitted by the complainant, the management’s unilateral decision to terminate the collective agreement in force (as concurred by the decision of the Kutaisi Court of Appeal) and refusal to bargain collectively with a view to concluding a new collective agreement on labour conditions and expected privatization of the Port allegedly led to the protest action, sealing of the trade union office by the management and dismissal of nine trade union officers. At the textile enterprise, all trade union committee leaders were allegedly dismissed following communication to the enterprise of the establishment of the union.
7. 766. With regard to the unilateral termination of the collective agreement by the Poti Sea Port management, the Committee recalls that agreements should be binding on the parties and that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Digest, op. cit., paras 939 and 940]. It further recalls that collective bargaining implies both a give-and-take process and a reasonable certainty that negotiated commitments will be honoured, at the very least for the duration of the agreement, such agreement being the result of compromises made by both parties on certain issues, and of certain bargaining demands dropped in order to secure other rights which were given more priority by trade unions and their members. If these rights, for which concessions on the other points have been made, can be cancelled unilaterally, there could be neither reasonable expectation of industrial relations stability, nor sufficient reliance on negotiated agreements [see Digest, op. cit., para. 941].
8. 767. With regard to the employer’s alleged refusal to bargain collectively, the Committee notes the information provided by the Government that the union made “inappropriate” demands which the administration could not satisfy and which, in turn, created a dispute between the union and the administration. The Government also indicates that no new agreement was signed by the parties due to the lack of interest expressed by the union. While noting that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining, the Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations. It is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., paras 926, 934 and 935]. The Committee requests the Government to take the necessary measures to promote respect for the abovementioned principles of bargaining in good faith and to indicate whether a collective agreement has since been concluded between the union and the new management of the Port.
9. 768. With regard to the sealing of the trade union office, the Committee notes that according to the complainant, the office was sealed on 19 October 2007 following a 45-minute protest organized by the union during lunch break on 15 October 2007. According to the Government, the union had no grounds for using the property of the Port after the termination of the collective agreement on 1 January 2007. While noting that the union office at the Poti Sea Port has since been reopened, the Committee considers that the closure of trade union offices, as a consequence of a 45-minute protest organized during lunch break, as alleged to be the case here, constitutes a violation of the principles of freedom of association and, if carried out by management, interference by the employer in the functioning of a workers’ organization, which is prohibited under Article 2 of Convention No. 98. The Committee requests the Government to ensure respect for this principle in the future and to keep it informed of the situation in this regard.
10. 769. The Committee notes the complainant’s further allegation that workers at BTM Textile have been intimidated and threatened with dismissal if they did not discontinue their trade union activities. The Committee considers that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 835]. The Committee requests the Government to conduct an independent inquiry into these allegations and, if found to be true, to take suitable measures of redress including, where appropriate, the issuance of relevant instructions and/or sanctions. It requests the Government to keep it informed in this respect.
11. 770. With respect to the 18 dismissed trade union leaders (nine from the Port and from the textile enterprise, respectively), while noting that the Government denies that these were anti-union dismissals, the Committee observes that these allegations were not fully investigated and that the Government appears to have based its reply merely on the statement of the Port’s management. The Committee recalls that no one should be subjected to anti-union discrimination because of legitimate trade union activities, and the remedy of reinstatement should be available to those who are victims of anti-union discrimination [see Digest, op. cit., para. 837]. In this respect and with reference to the complainant’s allegation of failure by the Government to ensure respect for the principles of freedom of association, the Committee recalls that it is the responsibility of the Government to ensure the application of international labour Conventions concerning freedom of association which have been freely ratified and which must be respected by all state authorities, including the judicial authorities [see Digest, op. cit., para. 18]. While noting that the union has brought actions before the competent courts and decisions are pending at various levels of the judicial system, in light of the courts’ judgements in the Poti Sea Port case, the Committee is concerned that the current state of the Georgian legislation may not provide the judiciary with sufficient tools to ensure adequate protection against, and remedy for, acts of anti-union discrimination. The Committee notes the most recent communication from the complainant, in which it indicates that the Prime Minister of Georgia issued an instruction to the Minister of Labour, Healthcare and Social Protection and the Chief Adviser to the Prime Minister to investigate and discuss the issues concerning anti-union discrimination at the earliest tripartite Social Dialogue Commission, as well as the possibilities for alternative employment for the workers allegedly dismissed from Poti Sea Port. In these circumstances, the Committee expects that, should the matter not be satisfactorily and promptly resolved through the tripartite Commission, the Government will carry out an independent investigation and if the allegations are found to be true, will take the necessary measures for the reinstatement of the dismissed workers in their posts. It further requests the Government to transmit a copy of the relevant judgements once they are handed down.