Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 370, Octobre 2013

Effect given to the recommendations of the Committee and the Governing Body

1. 45. The Committee last examined this case, which concerns interference in trade union activities of the Educators and Scientists Free Trade Union of Georgia (ESFTUG) and dismissals of trade unionists, at its November 2011 meeting [see 362nd Report, paras 65–74]. On that occasion, it requested the Government to: (i) take the necessary measures to ensure that the check-off facilities previously enjoyed by the ESFTUG are re established without delay and to ensure that any remaining arrears are paid to the union; (ii) conduct an independent inquiry into the allegation of dismissal of 11 workers from Public School No. 1 of Dedoflisckaro district and, if it is found that these teachers were dismissed on account of their ESFTUG affiliation, to take the necessary measures to reinstate them without loss of pay. If reinstatement is not possible for objective and compelling reasons, the Committee requested the Government to take the necessary measures to ensure that the trade union leader and members concerned were paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissal; (iii) take the necessary measures, without delay, in full consultation with the social partners concerned, 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; (iv) indicate the measures taken or envisaged to promote collective bargaining in the education sector and to inform it as to whether any collective agreement had been signed in the education sector and whether the ESFTUG was a party to such an agreement or participated in the negotiation; and (v) provide further information on the status of the Professional Education Syndicate (PES). The Committee noted the establishment of various bodies to address urgent and outstanding issues in the education sector and requested the Government to take the necessary measures to ensure that the abovementioned recommendations were brought to their attention without delay.
2. 46. By its communication dated 14 June 2012, Education International (EI) transmits the ESFTUG’s report, dated May 2012, on the situation of freedom of association and collective bargaining rights in Georgia. The report contains the following allegations: On 19–22 January 2012, a delegation of the Independent Trade Union of Educational Workers of the Azerbaijan Republic visited the ESFTUG and financed a two-day-long seminar for the ESFTUG members/teachers from the Azerbaijani ethnic minority, living and working in Georgia. The seminar was held on the weekend of 21–22 January 2012, and was attended by teachers from different regions of Georgia: Marneuli, Gardabani, Dmanisi and Sagarejo. Teachers from the Gardabani region of Georgia, who had arrived in Tbilisi on 20 January (Friday evening) were forced to go back to Gardabani at the order of the Head of the Gardabani Educational Resource Centre (ERC) of the Ministry of Education and Science (MES) and were told that if they refused to do so they would be dismissed. Eleven teachers from the Gardabani region went back on the same day. The Chairperson of the ESFTUG called the Head of the Gardabani ERC and explained that the teachers had arrived to Tbilisi to attend a trade union seminar during the weekend, to which the Head of the Gardabani ERC replied that teachers should have consulted her and obtained authorization before attending the event. The ESFTUG Chairperson argued, however, that, in accordance with the legislation, teachers were attending the ESFTUG seminar during the weekend and that the ESFTUG was not obliged to obtain a prior authorization. The ESFTUG Chairperson called the Head of the International Department of the MES in order to inform the Minister of Education about this act of intimidation, but is yet to receive a reply. The ESFTUG further alleges that teachers from the Dmanisi region, who also wanted to attend the seminar, were threatened with dismissals by the Dmanisi school principal, who, according to the complaint, had himself been threatened by the Head of the Dmanisi ERC. A clear chain reaction had been created, as another four teachers were called on 22 January to leave the seminar on the second day.
3. 47. The ESFTUG further alleges that, on 23 February 2012, its Chairperson and the Head of the ESFTUG Didube–Chugureti County organization in Tbilisi were planning a meeting with teachers of Tbilisi Public School No. 155, which had been agreed to by the school principal. However, on the same day, the latter changed her decision and refused to allow the ESFTUG leader to meet with teachers on the school premises. According to the complainant, during the first half of December 2012, several school principals told the ESFTUG representatives that two weeks earlier they had received instructions from the MES to cooperate with the trade union in accordance with the legislation. Yet, two weeks later, the ERC warned the school principals to abstain from such cooperation. The complainant further alleges that under the school principal’s intimidation and pressure, the staff of Tbilisi Public School No. 142 withdrew their ESFTUG membership.
4. 48. As regards the collection of trade union dues, the ESFTUG indicates that, since 2011, it has been working on an alternative way of transferring membership dues, using a “bank system” (transfer of membership dues from members’ private accounts to the trade union’s account on the basis of the members’ written statements). According to the ESFTUG, school principals and the MES create obstacles for the ESFTUG in the implementation of this new method of collection of trade union dues. According to the complainant, in December 2011, the Head of the Marneuli ERC met with school principals and ordered them to make sure that there were no ESFTUG members in the Marneuli region. To this end, the Head of the Marneuli ERC requested the Marneuli regional branch of the Liberty Bank to provide a list of teachers whose trade union membership dues were deducted and transferred to the ESFTUG account. This act provoked fear among teachers. The same occurred in the Tkibuli region. Furthermore, the principals of Tbilisi Public Schools Nos 22 and 139 allegedly requested the union to provide the lists of teachers who have requested that their membership dues be transferred via the “bank system”. The complainant considers that such requests constitute a clear act of interference by the school principals in its trade union activities.
5. 49. Furthermore, on 18 January 2012, during a meeting between the ESFTUG Chairperson and the Minister of Education, the Minister indicated that 600 schools did not have accountants and therefore were not able to process financial operations involving the transfer of dues. In response, the ESFTUG Chairperson reminded the Minister that the “yellow” union, the PES, gets its membership dues transferred to its account without any problems. The ESFTUG Chairperson also pointed out that money transfers were being made for other facilities provided to teachers.
6. 50. The EFSTUG concludes by indicating that the Minister of Education sent a letter to the ESFTUG Chairperson, on 2 February 2012, expressing his readiness to restore a relationship with the union in line with Georgian legislation. But, in the complainant’s opinion, the Ministry is not interested in dealing with the violations committed by the heads of the ERCs or school principals who do not implement the law and collective agreements. The complainant considers that, in order to effectively implement the right to collective bargaining and freedom of association, it is necessary for the status of collective agreements to be clearly defined and not be confused with ordinary labour contracts under the Labour Code (according to the legislation in force, a collective agreement and a labour contract have the same status); it is further necessary to provide in the legislation for the procedures and mechanisms to implement collective agreements.
7. 51. In its communication dated 14 November 2012, the Government transmits the comments made by the MES on the ESFTUG’s allegations transmitted by the EI. The MES indicates that, according to the Law on General Education, schools are legal entities of public law. Pursuant to section 2(1) of the Law on Legal Entities of Public Law, such entities carry out political, social, educational, cultural and other activities independently from the legislative or state governing bodies, subject, pursuant to section 11(1), to state control and monitoring of their financial and economic activities. According to section 49(1) of the Law on General Education, the MES is responsible for the supervision of the compliance by public schools with the legislation and the MES’s administrative and legal acts. According to section 43 of the Law, school principals manage schools, oversee the learning process and represent their schools in relations to third parties. Furthermore, school principals, respective structural units and/or their members are responsible for implementing the national curriculum. In case of a failure to fulfil their obligations, school principals are held accountable pursuant to the legislation. Therefore, a school principal is entitled to restrict free movement on the school territory if he/she deems it necessary for ensuring proper functioning of the school. Thus, in the light of the above, public schools make appropriate decisions within the scope of their discretionary power, however, if such decisions violate the rights of others, the legislation provides for the possibility of addressing appropriate courts.
8. 52. With regard to the actions taken by the heads of the MES territorial units towards teachers, the Government indicates that, should the respective documents and concrete information be submitted to it, the MES Internal Audit Department will take all measures to examine these cases and to immediately eliminate the violations.
9. 53. With regard to the right to conclude collective agreements, the Government refers to the independence of schools as legal entities, as discussed above. The Government points out that, in this sense, school principals are considered to be the teachers’ employers and not the MES.
10. 54. In respect of check-off facilities, the Government reiterates that, pursuant to section 25 of the Law on Trade Unions, “employer, administrator of enterprise, establishment or organization shall deduct membership fees from the employee’s monthly salary and transfer it to the account of a trade union on the basis of a written statement made by its member, in accordance with the terms and conditions provided for in the collective agreement”. In the light of these legal requirements, paragraph 4.13 of the sectoral agreement, dated 22 April 1998, obliges administrations of educational establishments (and not the MES) to deduct trade union membership fees from the salary of a trade union member and transfer them to the trade union bank account. However, a public school is not allowed to transfer trade union dues without the written consent of an employee and in the absence of a collective agreement.
11. 55. With regard to the legislative regulation of collective agreements as suggested by the ESFTUG, the Government points out that the Law on Collective Agreements, dated 10 December 1997, became obsolete following the adoption of the Labour Code, which provides for collective agreements under Title 3 entitled Collective Labour Relations.
12. 56. In its communication dated 27 February 2013, the Government indicates that the MES has radically changed its attitude towards the ESFTUG and is collaborating with all organizations and associations working on the challenges in the education system and the harmonization of labour relations. The approach of the MES is to support trade unions and to take into consideration their recommendations. It is important for the MES that every organization in the field of education has equal rights and that educational institutions have freedom of choice of cooperating with such organizations. In addition, the Ministry of Justice, together with the Ministry of Labour, Health and Social Affairs, is working on a new draft Labour Code which would better protect the rights of employees and their trade unions.
13. 57. The Committee takes note of the allegations transmitted by the EI which refer to new instances of interference into the ESFTUG’s internal affairs and which would appear to indicate that no measures were taken to implement the Committee’s previous recommendations. The Committee notes that, in its communication dated 27 February 2013, the Government indicates that the MES has radically changed the attitude towards the ESFTUG and is now cooperating with all organizations in the sector. The Committee understands that the Labour Code has been amended in consultation with the social partners to better protect the rights of employees and their unions. The Committee expects that, in the spirit of the stated improved cooperation between the MES and the complainant organization, the Government will take the necessary steps to implement all of the abovementioned outstanding recommendations without delay. It requests the Government to provide detailed information on the steps taken in this regard.