Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 378, Juin 2016

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

1. 41. The Committee last examined this case, which concerns allegations of interference in trade union activities of the Educators and Scientist Free Trade Union of Georgia (ESFTUG), at its October 2013 meeting [see 370th Report, paras 45–57]. On that occasion, noting the spirit of the stated improved cooperation between the Ministry of Education and Science (MES) and the ESFTUG, the Committee requested the Government to: (i) take the necessary measures to ensure that the ESFTUG can enjoy check-off facilities; (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; and (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.
2. 42. By its communication dated 14 June 2014, Education International (EI) transmits the ESFTUG’s report on the situation of trade union rights in Georgia. According to the ESFTUG, after the parliamentary elections of 2012, the attitude of the Government towards the union has changed: the pressure on the public schools has been removed; the ESFTUG representatives are no longer subject to harassment and are able to exercise their rights; the ESFTUG has started widespread activities to re-establish its operations and strengthen its actions; on the surface, trade union rights are recognized in compliance with Georgian and international legislation. The ESFTUG alleges, however, that the authorities are using “hidden methods” to interfere with its trade union activities.
3. 43. In particular, the ESFTUG alleges that the Government shows unconditional support to a newly established (on 2 November 2012) trade union, the General Education Trade Union (GETU). According to the complainant, the GETU was established with the encouragement of the Government. The ESFTUG alleges that the promotion and propaganda in favour of the new trade union has been encouraged at the teachers’ professional development sessions organized by the National Center of Teachers Professional Development (NCTPD) of the MES and its trainers, who have been working on convincing teachers to join the new union. The ESFTUG indicates that it had informed the MES about trainers’ activities using administrative resources. The complainant considers that the MES response was not sufficient: while the head of the NCTPD was dismissed, no measures had been taken against the trainers and one of the founders of the GETU (also an ex-chair of the ESFTUG Tbilisi organization).
4. 44. The complainant further alleges that the GETU exercises pressure on the school principals to convince the teachers to join the new union and that the educational resource centers (ERCs) of the MES continue to support and recognize the GETU and damage the image of the ESFTUG. In some instances, teachers were given promises to receive assistance (“credits” from the Teachers Professional Development Center) “in case they join the GETU”. In several regions, the GETU representatives were enlisted in the ERC Personnel Recruitment Commission instead of the ESFTUG elected trade union leaders, despite the recommendation of the MES.
5. 45. The ESFTUG refers to several discrepancies in the GETU registration process of which it informed the National Agency of Public Registry (NAPR) and the Ministry of Justice. The complainant considers that the actions taken by the NARP and silence of the Ministry of Justice demonstrate the favouritism from the Government towards the GETU. The ESFTUG considers that the GETU is a non-governmental organization, non-commercial legal entity, which has no ties with trade unions because it has not been founded on the basis of the Law on Trade Unions (e.g., allegedly, it did not submit a list of 50 founding members as per the Law) and that by using words “trade union” in its title, the GETU violates the Civil Code.
6. 46. With regard to the check-off system, the ESFTUG indicates that in general, and pursuant to the legislation in force, it signs agreements with school principals on the transfer of trade union dues to the ESFTUG account. However, some school principals still need to be convinced to comply with the legislation in force. The complainant alleges that in Telavi, the regional branch of the union succeeded in signing collective agreements only in two schools.
7. 47. In its communication dated 19 December 2013, the Government indicates that sections of the Labour Code dealing with collective agreements have been amended and that a new wave of amendments to the Code was planned for the future and that it was possible that the issue of anti-union discrimination would be considered as well.
8. 48. In its communication dated 5 September 2014, the Government transmits the comments made by the MES on the ESFTUG allegations transmitted by EI. The MES indicates that NCTPD trainers are selected throughout Georgia on the basis of a public competition and that trade union affiliation is not taken into account; furthermore, it makes no recommendations to the ERC regarding any specific union.
9. 49. The Government also indicates that following an internal audit, which confirmed the allegations of illegal lobbying of trade unions, on 12 April 2013, the then Director of the NCTPD was dismissed and the labour contract of one of the trainers was terminated.
10. 50. The MES further provides detailed information on the allegation of refusal to sign collective agreements on check-off facilities. In particular, the Government indicates that the ERC employees explained to a school principal in Telavi that according to the General Administrative Code of Georgia, a school principal has to register teachers written requests. After these explanations, the principal received written requests and concluded a collective agreement. The MES further indicates that: (1) the ESFTUG representatives have not presented themselves in nine out of 27 schools in the Telavi area; (2) seven schools have signed an agreement with the ESFTUG; (3) the ESFTUG representatives held meetings in other schools but teachers have not shown the desire to affiliate, however, more meetings were planned to take place.
11. 51. With regard to the allegation that public school principals were promoting the GETU among their employees as the only organization capable of providing the best service, the Government indicates that an internal audit of the MES conducted three inquiries into this allegation. The inquiry confirmed that such acts did not take place. To the contrary, according to the MES, the representatives of the ESFTUG exercised pressure on the local ERC by demanding to ensure that the GETU representatives are not allowed to enter schools and meet teachers.
12. 52. The Committee takes note of the ESFTUG report transmitted by EI. In particular, it notes with interest that the ESFTUG appears to confirm, as previously observed by the Committee, that the Government’s attitude towards the complainant has changed and that there were no cases of direct interference into its activities.
13. 53. The Committee further takes note of the new allegations submitted by the ESFTUG through EI and the Government’s reply thereon. With regard to the allegations relating to the establishment and the functioning of the GETU, the Committee points out that while only judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling the question of the organizational nature of the GETU, on the basis of the information provided by the complainant and the Government, the Committee does not have sufficient evidence to conclude that the GETU is wrongfully supported by the Government. It notes in this respect that the Government had carried out inquiries into the allegations of interference and where violations have been confirmed, penalties have been imposed.
14. 54. As regards its request to amend the Labour Code, the Committee notes with interest from the 2014 comments of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) that the Labour Code was amended on 12 June 2013 so as to expressly prohibit anti-union discrimination both at the pre-contractual stage and through the employment relationship. In particular, the Labour Code expressly prohibits termination based on anti-union discrimination and the burden of proof lies with the employer if the employee refers to circumstances which establish a reasonable doubt that the employer did terminate the contract of employment on an anti-union ground.
15. 55. The Committee further notes from the CEACR comments that: (i) the functioning and the composition of the Tripartite Social Partnership Commission (TSPC) were revised by the amended Labour Code and Resolution No. 258 of 7 October 2013; (ii) the new TSPC met for the first time on 1 May 2014 and its discussions included the mediation system of collective labour disputes in general as well as the existing conflicts in the education and other sectors; (iii) with the support of the ILO project on improved compliance with labour laws in Georgia, a selection process and training of candidates’ mediators were carried out; and (iv) the new Labour and Employment Policy Department of the Ministry of Labour operates as a moderator along with the social partners for the regulation of collective labour disputes. Welcoming the initiative taken to institutionalize social dialogue through the establishment of the TSPC, the Committee trusts that the TSPC will prove to be the body where allegations of violation of trade union rights will be examined and solutions found on the basis of tripartite discussions. The Committee expects that any outstanding issues in this case will be brought to the attention of the TSPC.