Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative stated that important and complex questions should be examined in a retrospective manner. The Labour Code of the Russian Federation was adopted over two years ago. The work on the Code was carried out in an open and democratic manner, in close cooperation with the social partners. The Labour Code had set up new labour relations, which had been formed after the transition from a centrally-planned to a market economy. In conditions of the social and economic changes, the Government of the Russian Federation and representatives of workers' and employers' organizations had reached social consensus and agreed that the new Labour Code was a crucial document for the development of the country. For the first time, the Labour Code laid down the principle of tripartite cooperation and developed further the fundamental provisions of the Russian Constitution. The Code had been drafted with the help of ILO experts, who had prepared numerous recommendations, most of which had been accepted and incorporated. With the help of the ILO, new social dialogue institutions had been developed; they included tripartite and bipartite bodies and mechanisms. All this work had been carried out by the Tripartite Commission on Social and Labour Relations, by reaching mutually acceptable solutions. To supplement the Labour Code, additional legislative acts had been adopted in consultation with the social partners. Twenty-one sections of the Labour Code dealt with the issue of settlement of labour disputes. The Code also regulated other issues in the field of labour, such as wages, employment and social protection. Because labour relations were constantly changing due to varying economic conditions, the work to improve the Labour Code was an ongoing process. By the decision of the Government and the State Duma, a tripartite working group had been established to analyse the practice and to prepare draft amendments to the Code. The Government's aim, as demonstrated by the ratification of all eight fundamental Conventions of the ILO, was to embody international standards in the national legislation.

With respect to the observations of the Committee of Experts, and more particularly to the quorum required for a strike ballot, section 410 was in conformity with international law, in particular with article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights. At the same time, the question of reducing down to 50 per cent the number of delegates needed to decide on strike action was being presently discussed by the working group on the improvement of the Labour Code. Concerning restrictions imposed on the right to strike of certain categories of workers, the Labour Code provided for an exhaustive list of cases where a strike was prohibited. These included workers employed in the sectors of the economy relating to defence and the security of the population. These restrictions were formulated on the basis of article 17 of the Constitution, which provided that the exercise of individual rights and freedoms should not violate the rights and freedoms of other persons. This approach was in conformity with article 8(1)(c) and (2) of the International Covenant on Economic, Social and Cultural Rights. On 1 February 2005, a new Law on State Civil Service had come into effect. This law had revoked the provision previously contained in section 11 of the Law on State Service, which had contained restrictions on the right to strike for state service employees. Section 410 of the Code, which provided for a requirement to indicate a possible duration of the strike, did not restrict in any way the right of workers to take strike action, as it did not provide for any time limits imposed on strikes. In fact, in order to extend the duration of strikes, no additional action was needed. After the entry into force of the Labour Code, and in particular section 413, restrictions on strike action provided for in other previously adopted legislative acts, which contradicted section 413 of the Code, no longer applied.

In respect of workers whose right to strike was restricted by the legislation in force, the Government representative pointed out that these workers enjoyed the right to organize and to settle their labour disputes in court. The current legislation provided for a limited list of undertakings where minimum services had to be ensured during a strike. These included organizations responsible for the safety and health of the population. Minimum services were determined in consultation with trade unions, and only if consensus was not reached, the executive body had the responsibility to draw up such a list, taking into account the interests, safety and health of the population. The workers had the right to appeal this decision in court. Furthermore, pointing out to the recent developments, he explained that four centres responsible for settling collective labour disputes had been set up in the Russian Federation. It was intended that their decisions as to establishing the lists of minimum services would be final.

He also explained the interpretation to be given to section 11 of the Labour Code and pointed out that this section did not refer to the restrictions as regards the application of labour legislation to such categories of workers as women, youth and workers with family responsibilities but, on the contrary, referred to the additional guarantees provided for by the Russian legislation. More specifically, it concerned the prohibition of work in unhealthy and dangerous conditions for pregnant women and persons under 18 years old.

Finally, he stressed that the issue of improving labour legislation was the sphere of competence of the social partners and that this work was carried out in the framework of bodies established on a tripartite basis and included examination of the application of labour standards in practice.

The Employer members noted that this was the first time that a case concerning this country was being discussed in the post-Cold War context. The issue of trade union monopoly which had been a long-standing problem in the country was no longer in question and a much broader right to organize was now available. As to the substance of the issue under discussion, the Employer members considered that, as the right to strike was not explicitly mentioned in the Convention, its application could be subject only to a general appreciation, although the Committee of Experts had made specific comments in this respect. In the Employer members' view, the Government should be commended for indicating that they were in the process of resolving the issues raised in the observation of the Committee of Experts. With regard to the requirement of organizing a ballot in order for a strike to be authorized, the Employer members considered that such a requirement was in line with the fundamental need to safeguard the democratic rights of trade union members. It was appropriate, therefore, that a strike ballot should involve the majority of the workers in a workplace. Although a requirement for all workers to vote would have been too high, the two-thirds requirement of the Labour Code did not seem excessive. The Employer members further wished to emphasize that the precedents of the Committee on Freedom of Association had no bearing on the question of whether a requirement to indicate the duration of a strike was in conformity with the Convention, given that the Committee on Freedom of Association was not limited to the language of the Convention. The same was true with regard to the question of essential services which should vary depending on the circumstances of each country. Where a general prohibition of strikes existed, however, appropriate alternatives involving recourse to a third party should be available to permit to overcome the impasse in negotiations.

The Worker members recalled that the case concerned the application of Articles 2 and 3 of Convention No. 87 which had been severely and negatively impacted by several provisions of the Labour Code of 1995 on which the Committee of Experts had widely commented. They had taken note of the modifications to this legislation which had been announced by the Government and would observe its effects in practice before pronouncing themselves in this respect.

The Worker members observed that: (1) although the right to strike was in fact enshrined in the Labour Code, in practice recourse to strike action was subject to conditions such as two-thirds of workers concerned being present at the general assembly and a quorum of 50 per cent of voters required, making strikes practically impossible at the sector or intersectoral level; (2) by requiring trade union organizations to stipulate the duration of the strike, the law prejudiced the rights of these organizations to carry out activities without interference from the public authorities; (3) the executive authorities of the State did not constitute an independent body which had the trust of all parties for deciding a dispute over the establishment of a minimal service, as the Convention foresaw; (4) the ban on strike action for all railway employees as well as for many other categories of state employees (public servants exercising authority in the name of the State) greatly exceeded the limits generally allowed for this restriction; (5) where strike action was prohibited it was essential that collective conflicts could be resolved by an independent body and not by the Government.

The Worker members also remarked that, generally speaking, these criticisms had already been made in 2003 and even in 2001 and the Conference Committee awaited not just a small step by the Government but a plausible demonstration of its genuine will to follow up quickly on the measures recommended by the Conference Committee and by the Committee of Experts.

The Worker member of the Russian Federation speaking on behalf of the Federation of Independent Trade Unions of Russia, the largest trade union in the country, recalled that trade union pluralism existed in the Russian Federation and that this fact explained different interpretations given to various legislative provisions. The right to strike was an inalienable right of workers and trade unions, which represented their social and economic interests. The strike was the most radical measure to which trade unions had recourse only in exceptional cases. The strike was not an end in itself but a response to flagrant and persistent violations of workers' rights and interests. If employers fully complied with the agreements concluded with trade unions through collective bargaining, and if the Government and the supervisory bodies rigorously controlled the application of labour and other legislation, workers would have no reason to have recourse to such an extreme measure to defend their interests. As the opposite was often taking place, labour legislation needed to contain provisions which would allow workers, without any excessive restrictions or prohibitions, to fully exercise their inalienable right to strike.

The Committee of Experts had presented its observations on the application of the Convention by the Russian Federation on more than one occasion. Two years ago, the Committee of Experts had made similar observations, to which the Government had not provided a response in a timely manner.

He agreed with the Committee of Experts, which considered that the list of professions where the right to strike was restricted was excessively broad. He also considered that the disputes which could lead to strike action should be settled by courts which were, by their nature and according to the Constitution, independent bodies, and not by the Government, as provided by the legislation. Moreover, the quorum required for a strike ballot might have been in fact lowered to a reasonable level. He further questioned the requirement to notify the duration of the strike, which should be allowed to last as long as its goals had not be reached and the dispute not resolved.

Other points, not raised by the Committee of Experts, but which were nevertheless problematic to trade unions, concerned the absence of a right granted to national sectoral trade unions to call a general strike on enterprises of a given sector. The strike was a prerogative of an enterprise trade union. That meant that workers of the same economic sector could not express their solidarity with other workers trying to solve an industrial dispute with their employer. In law as in practice, a strike at a large corporation belonging to the same owner but regrouping enterprises of various sectors of the economy would be impossible. That explained the fact that a large number of strikes in the country had been declared illegal. The speaker finally expressed his satisfaction with the fact that the Committee of Experts was constantly reminding the Government of its responsibility to bring legislation into conformity with the Conventions it had ratified. A complete application of international labour standards was beneficial to all - the Government, employers, and above all, to workers.

The Worker member of Romania said that this case had been examined by the Committee on Freedom of Association in 2003 and 2004. In this respect, it could be considered a flagrant violation of the Convention which was a fundamental ILO Convention.

Section 11 of the Labour Code of the Russian Federation envisaged restrictions on the right to strike for certain persons, including persons with two jobs, persons with family responsibilities, women, young persons and civil servants. The Government imposed other restrictions on the right to strike for holders of a contract under civil law, who were excluded from the scope of application of the Labour Code. These restrictions constituted a violation of Article 2 of the Convention, which provided that workers and employers, without distinction whatsoever, should have the right to establish and to join organizations of their own choosing.

Section 410 of the Labour Code required that at least two-thirds of the workers be present at the meeting in which the decision to call a strike was being decided and that the decision be adopted by at least half of the delegates present. Furthermore, section 410 of the Labour Code required workers' organizations to notify the Government of the planned duration of the strike, which constituted a violation of their right to organize without interference by the public authorities.

Section 412 of the Labour Code contained an exhaustive list of organizations and enterprises in which a minimum service had to be assured in the event of a strike. The disagreements concerning the establishment of a minimum service were regulated by an executive body of the Russian Federation under section 412 of the above Labour Code. However, in accordance with ILO practice, these disagreements had to be regulated by an independent body. By virtue of section 413 of the above Labour Code, the right to strike was prohibited for certain activities in the productive sector as well as for essential services, for which decisions concerning collective conflicts were taken by the Government. However, in the event of restrictions or limitations on the right to strike, which deprived workers of an important means of protection, workers should benefit from conciliation, mediation and arbitration measures.

Taking into consideration that this was the second time that this case was being discussed in this Committee, the Government should take all the necessary measures to bring its legislation into conformity with the Convention.

The Employer member of the Russian Federation stated that the work on the amendment of the Labour Code was presently under way and carried out by the special working group created by the State Duma. Several provisions had already been amended but sections 412 and 413 had not yet been discussed. Since the work on the amendment of the Labour Code was not yet concluded, it was premature to examine this piece of legislation. He finally pointed out that the Employer members considered that the provisions of the Convention did not contain any reference to the right to strike and therefore did not confer such a right.

Another Government representative (Deputy Minister of Health and Social Development) concluded by stating that her Government was prepared to cooperate further with the ILO on the issues discussed and to report on the progress made in this respect. She stressed once again that the efforts were being made to amend the Labour Code and that the work in this respect was carried out in consultation with the social partners.

The Employer members took note of the Government's last indication that it was committed to studying appropriate amendments to the legislation so as to bring it in line with the Convention. It was however often the case that governments set up commissions working on legislative reform over long periods of time. They therefore wished to ask the Government to ensure that the working group would constitute an effective process that would lead to concrete improvements of the situation in a short period of time.

The Worker members emphasized that the consistent practice of adopting a number of measures of a limited scope shortly before the Conference, did not reflect positively on the States concerned. They requested that, in its report, the Committee call on the Government to rapidly take measures to ensure that the provisions of the Labour Code, which had been criticized for such a long time, be finally brought into conformity with the Convention, and also to request the Government to provide information on the measures adopted in the next session of the Conference.

The Committee took note of the statement made by the Government representative and of the detailed discussion that followed. The Committee recalled that the comments made by the Committee of Experts referred to the rights of employers' and workers' organizations to organize their administration and activities without interference by the public authorities.

The Committee took note of the Government's statement, according to which the Labour Code had been the subject of extensive consultations with the social partners and that a tripartite working party of the Duma would examine the effectiveness of the provisions in the Labour Code with a view to possible modifications; the working party was currently discussing certain reforms to the provisions mentioned by the Committee of Experts.

The Committee requested the Government to take all measures necessary for the process under way to be carried out in an efficient and rapid manner in order to bring national legislation and practice into conformity with the Convention in the near future. The Committee requested the Government to send before the next meeting of the Committee of Experts a detailed report containing full information on progress made in this respect.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

A Government representative said that his Government was guided by the wish to co-operate and to have a dialogue and was ready once again to provide factual information and to express its position on the relevant comments of the Committee of Experts.

The Government strictly observed Convention No. 87. The Constitution of the USSR, the Constitutions of the Union Republics and the existing legislation guaranteed the freedom to establish trade unions and trade union activities. Article 51 of the Constitution of the USSR guaranteed to citizens the right of association in public organisation, including trade unions. Citizens' membership in trade unions was carried out on a purely voluntary basis. All social organisations were guaranteed by the Constitution the conditions for carrying out their tasks successfully, and this fully applied to trade unions as well. Under the basic legislation of the USSR and the Union Republics, state bodies did not interfere in the internal life of trade unions. Occupational unions acted according to the by-laws they adopted and were not subject to registration with state bodies. In the legislation it was provided that state bodies, enterprises, institutions and organisations were obliged to assist trade unions in their activities. Soviet legislation clearly reflected the right of trade unions to represent the interests of workers and employees and to engage in supervision to ensure respect for labour legislation. In today's conditions of an accelerated social and economic development of Soviet society, and in conditions of restructuring and democratising life in society, the role of trade unions was increasing, and this could be seen from the 18th Trade Union Congress held in February this year. The Constitution of the USSR provided the right of trade unions to take part in state administration, and article 113 of the Constitution guaranteed to the trade unions the right of initiating legislation. For example, in the past five years the all-union Central Council of Trade Unions had presented more the 100 proposals to the Government on important social questions relating to employment. These proposals had been reflected positively in various government texts as well as in the five-year plan for the economic and social development of the Soviet Union for the coming five years and for the period up to the year 2000.

The speaker stressed that at present the trade unions were taking an active part in the drafting of a new law on retirement which would improve the pensions benefits granted to workers when they retired. At the 18th Trade Unions Congress referred to earlier, the question had been raised of the need to elaborate a new law on holidays for workers and employees, including the need to increase the minimum duration of such holidays. The issue of a new legislation which would provide women with the possibility more fully to exercise their right to part-time daily or weekly work also been raised. At the Congress, the new charter for the trade unions had been approved, strengthening the role of the trade unions in economic and social life as well as their democratic activities.

Convention No. 87 was being fully respected and applied in his country, and some provisions of the legislation went even further than those guarantees laid down by the Convention. For instance, article 137 of the Penal Code of the RSFSR, and analogous articles of the Penal Codes of other Union Republics, provided for penal responsibility for hampering the legitimate activities of the trade unions and their bodies.

The comments of the Committee of Experts, as contained in paragraph 1 of its observation, dealt with the 1971 Regulations respecting trade union committees and section 230 of the Labour Code of the RSFSR, which also determined the basic rights of trade union committees in enterprises and various establishments. In the view of the Experts, these standard-setting provisions seemed to be worded in such a way as to preclude the possibility of setting up trade unions which did not presently exist. It must be categorically stated that this was untrue, unfounded and a biased interpretation of the legislation. The Experts were unable to give a single example which would confirm the existence in the legislation of his country of any prohibitions regarding the setting up of new unions.

In none of its provisions did Soviet labour legislation impose the single trade union movement. The Government had already had the opportunity of stating in the present Committee that the name formerly used-"local, factory and works trade union Committee"-the title of which the Committee of Experts felt was insufficiently broad, had been replaced in May 1982 by a broader title-"Trade Union Committee". In this connection, the provision regarding the 1971 Regulations respecting Trade Union Committees applied to any trade union committee, independently of where it was set up.

In the report sent to the Office, examples had already been given of how this provision was applied in Kolkhoz committees, student committees and teachers' organisations.

As regarded the Committee of Experts' comments on sections 230 to 231 and 233 to 235 of the Labour Code of the RSFSR, there was no prohibition in any of these sections. These sections provided for broad powers of trade unions in enterprises so as to protect the interests of the workers and to meet their social and cultural needs, and they contained important guarantees of the activities of trade union organisations and their elected representatives. It must be repeated that the interpretation of these sections by the Committee of Experts was an incorrect and biased one.

One should not have the impression that his Government felt that the legislation dealing with the functions and rights of trade unions did not require improvement. On the contrary, the dynamics of social and economic development at the present time and the restructuring process had given a new stimulus to the improvement of Soviet labour legislation. The 1983 Act on labour collectives had already considerably enriched the functions of trade union committees in enterprises and institutions. Very soon, new labour legislation would be adopted on state enterprises. A Bill, related to the reform of economic management, had been published and was being discussed by workers. This Bill provided for an active role for trade union organisations in the management of enterprises and in the solution of social problems in the interest of workers, including the selection of the directors of enterprises and other administrators.

Finally, at the 18th Trade Union Congress, the question had been raised of the need to draw up a special law regarding trade unions. The future legislation would include new rights of unions in the fields of democracy and socialist self-management. In the legislation, there was provision for a right of trade unions, at all levels, to stop certain administrative decisions or other state decisions which would violate labour legislation or would prejudice social interests of labour collectives or trade union rights. This was to be a new step to strengthen the role of trade unions in the protection of workers' interests.

The comments addressed to the USSR and other socialist countries in the 1987 report of the Committee of Experts were not shared by all the members of the Committee of Experts. On page 143 of that report (English text) one saw the views of two experts who made well-founded comments and reservations. These comments and reservations dealt with the need to take into account the different situations and conditions existing for historical reasons in various spheres of social and economic relations in various countries. This showed that the views of the Committee of Experts were not shared by all members, but only a number of them.

It was necessary to state that the views of the Committee of Experts on the application of the Convention, which the Committee had felt it necessary to recall in its report, had frequently been contested by members of various governments in this Committee, notably in its present session. The central question here, if one looked at the views of the Committee of Experts, was the attitude towards the single trade union movement. There was no need to prove that labour and the trade union movement appeared long before the ILO was set up, and even longer ago that the setting up of the Committee of Experts and the adoption of Convention No. 87. This movement had come into existence and would continue to develop because of objective trends and social laws. The trends and efforts of the working class towards unity, in particular within the framework of a trade union movement, had long been a fact. In addition, the majority of the Committee of Experts seemed to think that the trade union movement should develop according to its own interpretation of the Convention. The Government, in the view of the Committee of Experts, should act not basing themselves on social and economic realities which existed in the country but on the basis of the views and concepts of that Committee with regard to the Convention. As far as his country was concerned, the unity of the trade union movement had developed immediately after the Socialist October Revolution of 1917, and today there was no social, economic and political basis for splitting the trade union movement. The approach adopted by the Committee of Experts was unjustified because it considered the trade union movement and relevant national legislation in the context of Convention No. 87, whereas everything should be exactly the opposite. This Convention should be considered in the context of the reality of the trade union movement and the national legislation in each country.

Concerning Point 2 of the observation made by the Committee of Experts the speaker stressed that the Committee of Experts had decided once again to take up the question of the relationship between the Communist Party and trade unions in the USSR in connection with Convention No. 87. This was an artificial question and it was artificially linked up with Convention No. 87 because the relationship between the political party and the trade unions was not a subject for consideration under this Convention. The Government had provided the necessary information and explanations on this question a number of times. The trade unions were not subject to the Communist Party. The relations between the Party and the trade unions were political relations, with members of the Party being also members of the trade unions. It should be stressed that the Convention in no way forbade the workers in trade union organisations from being members of a political party and to engage in political activities through trade unions. There were similar relationships between political parties and trade unions in non-socialist countries as well. In his country the relationship between the Communist Party and the trade unions were not legal relationships, and did not impinge on the statutory rights of trade unions (the guarantee of independence of trade unions) which were contained in the legislation of which he had already spoken in detail.

Party organisations acted within the framework of the Constitution, and in particular in its article 6, but the Committee of Experts had for some reason completely disregarded this provision. The work of the Party was carried out with methods of persuasion, and Party policy was implemented thanks to the trust placed by the various members in the correctness o this policy; this, of course, instilled confidence between the members of the Party and of the trade unions. Therefore many Party members, as well as non-Party members, were elected to trade union bodies. What was involved well political relationships, whereas the Committee of Experts for some reason felt that it could evaluate the degree of application of the Convention from the perspective of such relationships. This was an example of the manner in which the Committee of Experts, in spite of its own rules which it had set out in paragraphs 21 and 22 of its report, had taken on itself the interpretation of the Convention and the national legislation.

Regarding the last comment of the Committee of Experts, on the Order of 15 May 1935, the Committee of Experts was also, unfortunately, arbitrarily interpreting national legislation. In the 1935 Order, it was clearly stated that it dealt with all-Union congresses and social organisations and not any trade union meeting or conference, whereas the comments of the Committee of Experts referred to any meeting or conference of the trade unions. It was unfortunate that the Committee of Experts had made such an inaccurate statement. The Government of his country had already said a number of times that this legislation had not been applied for a long time and that it would be repealed in the general process of revision and improvement of legislation. At present in the Council of Ministers of the Soviet Union favourable consideration was being given to the proposal made by trade unions and other social organisations to replace the Order of 15 May 1935. The speaker regretted that the Committee of Experts not only had not taken into account the information provided by the Government, in particular with regard to the points just mentioned, but had also failed to consider information available to the International Labour Office. Some time ago, on the invitation of the Government, the Office had sent a special mission to the USSR to study the actual situation regarding freedom of association there. The members of the mission had submitted a special report. The report contained a very detailed account of the trade union situation and in particular reference to the fact that the structure, functions and rights of Soviet trade unions could not be understood without taking into account the economic, political and social structure of the Soviet State. Unfortunately the Committee of Experts just maintained its formal position, and that the above information had been completely ignored. The Committee of Experts had also not taken into account the discussions in this Committee. In 1983 this Committee had considered the question of the Convention, stating that it noted that after a lengthy and detailed discussion regarding the application of the Convention in the USSR fundamental differences of opinion remained but that this extensive exchange of views which had taken place showed that there was a sincere desire to continue a dialogue. Finally, he stated that his Government was guided and would continue to be guided by a desire for co-operation and dialogue.

The Worker member of the USSR stated that the Committee of Experts was not taking into account the annual reports of his Government, which had put forward new views and new explanations. Nor had it taken into account the changes taking place in the USSR over the last few years with regard to labour legislation. The last report adopted by the Committee of Experts had not taken into account changes in labour legislation or the changes in the situation of the trade union movement in the USSR since 1983, when this question was last discussed. For example, at the beginning of its observation, the Committee of Experts had referred to 1971 Regulations which had been amended four times since then. But the Committee of Experts had unfortunately not taken this into account. Over the last four years, his country had adopted legislation concerning labour collectives which, in accordance with the last Constitution of the USSR of 1977 and together with the organisations of trades unions representing workers in enterprises, gave a new concept of the labour collective in the enterprise. Through this new form of Participation of workers in the management of social and other affairs of the enterprise, the workers were given very wide-ranging rights. For a number of months there had been a broad-based examination of a draft law on state enterprises, which had been proposed at the 18th Trade Union Congress. This Bill provided a new basis for collaboration between the administration and the workers of the enterprise. It was still under discussion but was already being implemented on a local basis. In many enterprises workers were participating in the election of directors. Councils of labour collectives were being established, much broader based than the previous trade union organisations. Apart from trade unionists the councils included representatives of organisations of women and young workers and a whole range of categories of workers. So this was a new form of workers' organisation, reflecting the development of the trade union movement and overall workers' organisation.

At the last trade union congress, a proposal had been made for the adoption of a special law with regard to trade unions in the USSR. At the present time, the functions of trade unions, their rights and their powers were treated in a number of different laws. It was high time to collect all these diverse legal instruments in one labour code; and it would be useful to create one law which would very clearly reflect the rights, functions, tasks and the role of the trade unions in the context of developed socialist society. It was intended to include the decision adopted at the 18th Trade Union Congress, permitting a trade union to reject any state decision adopted without trade union agreement and which was against workers' interests. This law would also include a new provision, proposed at the last Trade Union Congress, that the trade unions were a counterweight to the technocratic tendencies in the economy. This was another important aspect defining an essentially new role of the trade unions.

Until now, trade unions had always been able to expand and defend the rights of workers. The legal, economic and material possibilities of trade unions were exceptionally wide-ranging. Seventy per cent of the decisions taken by the administration could be adopted only with the agreement of the trade union committees in the enterprises. In 1986, more than 120,000 persons in the administration had been fined because they had allowed violations of labour legislation to occur. Over 10,000 persons in the administration had been removed from their posts because they had not taken trade union rights into account. This showed very clearly the wide-ranging rights and powers of trade union organisations. The report of the Committee of Experts contained a number of inadmissible statements. For example, the Committee of Experts had asked the Government to indicate whether workers had adopted any initiative to establish independent workers' organisations. Since 1917 there had been no attempt to create any kind of independent autonomous trade union.

The Committee of Experts had reached the conclusion that the system of trade union monopoly had been indirectly created by the law. It had not been created indirectly by the law, but rather by the workers, who had carried out a bitter struggle before the Revolution and who had created this system themselves. The final conclusion in the first part of the Committee of Experts' conclusions was surprising and inexplicable. This conclusion was very difficult to understand from a legal point of view. The Committee of Experts had attempted to impose its interpretation as the only possible one, an arbitrary interpretation of ILO Conventions.

With regard to the relationship between the Party and the trade unions, it was implied that the political party and the trade unions were all state bodies, but this was in contradiction with the Constitution. The Committee of Experts had, in quite an arbitrary manner, cited article 6 of the Constitution which said that the Party is the leading and guiding force of Soviet Society and the nucleus of its political system. It cited this part of the Constitution but it ignored other parts of the Constitution, as for example, the second part of the same article providing that all party organisations shall function within the framework of the Constitution. The second paragraph of article 4 provided that State and public organisations must respect the Constitution and Soviet laws. Article 2 also made it clear that all State authority in the USSR was exercised through the Soviet of People's Deputies, and that other state bodies came under the authority of these Soviets of People's Deputies. Other articles of the Constitution clearly defined the nature of a public organisation in the USSR. The Committee of Experts had taken out of context one part of the Constitution but it should look at the legislation as a whole. Why could the Committee of Experts not consider another important political document, the Constitution of the Communist Party of the Soviet Union itself, which stated clearly that the Party acted within the framework of the Constitution of the USSR, and provided political guidance for the public organisations of the USSR, but that the Party did not replace co-operatives or trade unions, nor did it interfere in the operations of those bodies.

With regard to the third section of the report of the Committee of Experts, the Government representative had already said that the possible repeal of this law, which had never been enforced over 52 years, was now being considered at their urgent request. With regard to the law concerning collective farmworkers, a decision had been taken in May, and was being published in two newspapers, including the newspaper of the trade union organisation, Trud.

It would be important to have an international seminar on the role and functions of trade unions in socialist countries. For four years they had been calling on the Office to organise such a seminar, and had been told that there was no opportunity of doing this. He could not understand why this was not possible. It was proposed that this be carried out in his own country, which would pay the costs. He would once again like to propose to the Office and to the members of the present Committee that it consider the holding of such a seminar in his country. This could do away with many misunderstandings which had arisen in the course of discussions in this Committee.

The Employers' members, referring to the Government representative's statement to the effect that the Committee of Experts had been repeating the same comments year after year, indicated that the reverse could be said: the Government was also repeating itself. In fact, the Committee continued to refer to the same legal provisions and regulations which were at variance with the requirements of the Convention. This could be seen in particular with regard to the 1971 Regulations on the rights of local, factory and works trade union committees, which excluded the possibility of any other workers' organisation and was therefore incompatible with the provisions of the Convention. The Government representative had referred to certain concrete changes which reinforced the significance and influence of the trade unions. This might be so, but the question raised by the Committee of Experts had referred to the possibility of establishing other trade union organisations. It was not the Government's desire nor the objective of the Convention that the trade union movement should be split; but the matter under consideration was the possibility of establishing workers' organisations by the free choice of the workers themselves. The Government representative had indicated that the possibility of creating independent trade union organisations was not excluded, but he had added that there was no need for this because the existing organisation already carried out all the tasks. The Committee of Experts had raised a relevant question when it had asked the Government whether there had been any action taken by workers with a view to establishing workers' organisations independent of the existing trade union structure. If the establishment of other trade union organisations was authorised, it would have taken place already, considering the size of the country and the number of workers. Ten years ago in this Committee a Government representative had not altogether excluded the possibility of the establishment of a trade union organisation if the workers expressed a desire for this. The response given today to the same question was a little different. In any event, it could be confirmed that with regard to the question of trade union monopoly, the situation remained without any substantial progress.

With regard to the links between the Communist Party and the trade unions, according to article 6 of the Constitution of the USSR, the Communist Party was the force that directed and guided Soviet society and was the nucleus of the social organisations. The Committee of Experts was not wrong to point to this provision. In effect, the Communist Party had a guiding and preponderant role, and when the Committee of Experts had mentioned these links it was not referring to an individual or personal relationship, but to a very broad influence established in the Constitution. Without any doubt the Committee of Experts was referring to the Party's functions of direction and guidance which were very far-reaching, and the exercise of which had a large influence not only on society in general but also on social organisations such as trade unions. For this reason, the Committee of Experts had concluded that the freedom and independence of trade unions was limited by the above-mentioned constitutional provision.

With regard to the question of prior authorisation for the exercise of the right of occupational organisations to hold meetings, the Government representative appeared to have indicated that although in his opinion the interpretation of the Committee of Experts was incorrect, the Order which required such authorisation was going to be amended or repealed. If so this was a cause for satisfaction since this matter had been discussed for a long time without any results.

In the course of his statement, the Government representative had once again mentioned the differences of view among the Committee of Experts. This was proof that each one of the Experts had the right to dissociate himself from the opinion of the Committee of Experts as a whole. In this regard it must be remembered that it was constantly being stated that the Committee of Experts must respect democratic principle. It should also be recalled that one of the fundamental tenets of democracy was the principle of majority, and that for many years the Committee of Experts had maintained a very clear viewpoint on this question. In the discussions that had been held there had been no new elements which might be called fundamental. It must be stressed that in this case the problems in application of the Convention were not secondary, but that for a long time there had been problems concerning crucial points in the application of this fundamental Convention. The Employers' members felt that this situation gave rise to profound and grave concern. The fact that discussions had taken place in a calm manner did not mean that regret should not be expressed at the very serious discrepancies between national law and practice and the Convention.

The Workers' members referred to the discussions of this case in the Committee over several years and the nuances and differences of opinion expressed as to the application of the Convention. A Convention's application should not be interpreted by reference to differences of political economic and social systems but standards should rather be interpreted uniformly. There had been some changes and new developments, but also some problems and difficulties.

Under Article 2 of the Convention, the establishment of a trade union could not be dependent on a law or on government or party authorisation. Interpretation of the present law was a matter for discussion but the absence of other unions and the inability to follow through on some attempts to create other unions (such as SMOT, some leaders of which had recently been released) was a problem. It was hard to believe that these organisations could endanger the government or the State.

There was positive change in the statement regarding trade union autonomy. The Workers' members were categorical that a union should be autonomous in its by-laws, management, functioning and finances. The Committee of Experts had raised the question of article 6 of the USSR Constitution, which laid down the Communist Party's role as the driving and guiding force in Soviet society and the nucleus of its political system, state bodies, and public organisations. The Workers' members were always apprehensive as to the dependency of trade unions. This point should be clarified. It was when trade union unity was compulsory and led to a monopoly that it was contrary to the Convention. The Workers' members also stressed the importance of the information provided by the Government representative and the Worker member of the USSR. There had been some reforms and changes and more were in view which should be drawn to the Committee of Experts' attention and that of the Conference Committee, so that the progress made in overcoming the doubts, contradictions and difficulties referred to could be taken into account. Real trade union freedom and autonomy, they recalled, could also contribute to bringing nations together in peace.

The Government representative commented in reply to the Employers' and Workers' members on three possible obstacles to a complete appreciation of the problems discussed in the Committee. The first was the differences of viewpoint and evaluation between the Committee of Experts on the one hand and the Government and public opinion on the other as to the application of the Convention. The Committee of Experts was not interested in the manner in which the Convention was applied in practice: there were 140 million members of the union movement, dozens of branch trades unions in federations, a huge resource infrastructure, and broad managerial rights in the State and enterprises, and there was democracy within trade unions. There was some movement within the union itself. The Committee of Experts was not the least bit interested in that, much to the Government's disappointment and chagrin. The Government was ready to discuss the experience of the union movement, the implementation of standards which had raised certain problems, unions' by-laws, current developments in the country-but the Committee of Experts was not interested. It was not interested in the day-to-day life of 140 million people-97 per cent of manpower in employment-or the way social rights are applied. The Committee of Experts thought that only one sort of hypothetical situation should be considered as the only matter of importance in relation to the unions and the application of the Convention. It was this failure to understand which was at the heart of the Government's grievance against the supervisory machinery. The Government did not wish to discuss hypothetical situations but real ones.

The second point was that it could not be forgotten that ILO Conventions are applied in very different economic, social and legal systems. The Convention had no direct effect but had up to a point to be transformed into national law-and this was what the relevant legal system did. This implementation depended on many things: economic and social conditions, custom, the development of law in the country, the concepts used in completely diverse social contexts. This was important, since the Committee of Experts started with a preconceived model born of different parentage, in fact.

The third point was the strictly legal question. The evaluation of the 1971 Regulations, with the amendments mentioned by the Worker member of USSR as to union committee rights, and relations between the Party and the trade unions were questions of interpretation. The Committee of Experts had agreed that national legislation could only be interpreted by national bodies, but in its comments it did in fact interpret national legislation. The same applied to the attempt to establish some link between the Party and the trade unions. Such link was not an invention of the socialist system but predated it; it subsists in many countries. The question was how legislation reflects this social reality. Without of respect for their national sovereignty-speaking of what happens in other countries, the Government representative indicated his Government's view that the Soviet Constitution reflects the true state of these relationships and that the interpretation of it made by the Committee of Experts was quite unacceptable.

Finally, he reiterated his Government's willingness to continue its collaboration with the ILO, the Committee of Experts and the present Committee in order to provide information on current economic and social developments and results achieved in trade union matters in particular.

In a brief exchange as to the conclusions to be drawn from the present case, the Workers' members expressed the wish that reference should be made to current developments, which were to be followed. A proposal by the Chair to refer to "restrictions" in regard to the evaluation of the full application of the Convention was supported by the Employers' members; the Workers' members proposed replacing the word "restrictions" with "contradiction". At the request of the Government representative, the word "divergencies" was agreed on.

The Committee took note of the discussion that had taken place and in particular the information, including the new elements, communicated by the Government representative. The Committee recalled that the Committee of Experts had, for many years, been commenting on the system of trade union monopoly, the links between the Communist Party and the trade unions and other matters, including the right of meeting being made subject to previous authorisation. On these matters, the Committee recalled that there had always been a divergency of views regarding the application of the Convention. The Committee welcomed the dialogue that continued to take place with the Experts, and in this Committee, on these questions. The Committee continued to share the view of the Experts that divergencies remain regarding the full application of the Convention. The Committee trusted that the continuing dialogue on all these matters would lead to a further examination of the legislation and the practice in question. It hoped that in any future review of the legislation the Government would take the comments of the Experts fully into account so as to ensure conformity with the Convention. The Committee requested the Government to report on further developments in the situation.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 3 of the Convention. The Committee recalls that it had previously requested the Government to make a number of amendments to the Labour Code so as to lift the restrictions on the right to strike. In particular, the Committee requested the Government to amend section 410 of the Labour Code, so as to repeal the obligation to indicate the duration of a strike, so as to allow trade unions to declare strikes of unlimited duration. The Committee notes the Government’s indication that section 410 does not specify the time and maximum duration of a strike, but the decision to declare a strike should indicate its expected length. The Government further indicates that, in order to protect the interests of the population, the legislation does not provide for strikes of unlimited duration. The Committee requests the Government to provide information on the procedure for the extension of duration of an ongoing strike.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 alleging numerous violations of trade union rights in practice, including denial of registration of trade unions, interference by the authorities in internal trade union affairs, harassment of trade union leaders, and restrictions on the rights to strike. The Committee recalls that in its previous observations it had also noted communications submitted by the ITUC containing similar allegations. The Committee further notes the comments submitted by the Russian Labour Confederation and the Seafarers’ Union of Russia in a communication dated 16 December 2009. The Committee notes with regret that the Government once again did not provide observations on the comments submitted by the ITUC or other workers’ organizations. The Committee strongly urges the Government to provide its observations thereon, as well as on the previous comments of the ITUC.

Article 3 of the Convention. Right of workers’ and employers’ organizations to organize their administration and activities. Right to strike. Labour Code. The Committee recalls that it had previously requested the Government to amend section 412 of the Labour Code, so as to ensure that any disagreement concerning minimum services in organizations responsible for safety, health and life of people and vital interests of society, where the minimum services must be ensured during a strike, is settled not by the executive body but by an independent body having the confidence of all parties to the dispute. The Committee notes that while the Government confirms that a body of executive power of the Russian Federation is entitled to define minimum services, it indicates that such a decision may be appealed by the parties to the collective labour dispute to the court. The Committee considers that since the system of minimum services restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service, and empowered to issue enforceable decisions (see General Survey on freedom of association and collective bargaining, 1994, paragraph 161). The Committee therefore once again requests the Government to amend section 412 of the Labour Code so as to ensure that any disagreement concerning minimum services is settled not by the executive body but by an independent body having the confidence of all the parties to the dispute.

The Committee recalls that it had previously requested the Government to amend section 413 of the Labour Code so as to ensure that when a strike is prohibited, any disagreement concerning a collective dispute is settled by an independent body and not by the Government. The Committee takes due note of the Government’s explanation that it is entitled to stop a strike in services of a vital interest until the issue is solved by the court under this section, but this injunction may not last longer than ten days.

The Committee notes the Government’s indication that the Ministry of Health and Social Development together with the social partners are elaborating the Concept of the Social Partnership Development and that within the framework of this exercise, it is envisaged to address the issues related to the provisions of the Labour Code and other rules and regulations regarding the organization and conduct of strikes, to establish an efficient mechanism for solving labour collective disputes and to improve the labour legislation taking into account the comments of the ILO supervisory bodies. The Government further indicates that the permanent tripartite working group of the State Duma Committee on Labour and Social Policy has resumed its work with a view to study the legal practice and prepare proposals aimed at improving labour legislation. This working group intends to consider proposals of the social partners on the Labour Code amendments. In this respect, the Committee notes the comments submitted by the Russian Labour Confederation and the Seafarers’ Union of Russia alleging that the work on amending the Labour Code pursuant to the recommendations of the ILO supervisory bodies was not moving forward. The Committee hopes that the work of the abovementioned working group will result in the near future in a legislative reform that will take into account the abovementioned comments and requests the Government to provide information on any further developments in this respect. The Committee once again reminds the Government that it can avail itself of the technical assistance of the Office if it so wishes.

Other legislation. The Committee recalls that it had previously requested the Government to ensure that workers of postal services, municipal services and railways can exercise the right to strike and, to that effect, amend section 9 of the 1994 Federal Postal Service Act, section 11(1(10)) of the 1998 Federal Municipal Services Act and section 26 of the 2003 Federal Rail Transport Act. It further requested the Government to indicate whether there are any legislative restrictions imposed on the right to strike of civil servants other than civil servants exercising authority in the name of the State. The Committee notes the Government’s indication that the right to strike of the following categories of workers is restricted: workers of the federal courier communications and the municipal employees, as well as certain categories of railway workers. The Government further indicates that the Law on State Civil Service of the Russian Federation of 2004 prohibits civil servants from stopping their duties to solve a labour dispute. The Committee notes that the Government considers that the restrictions imposed on the right to strike of certain categories of workers do not contradict international standards and indicates that workers whose right to strike is restricted have the possibility of using other means of solving collective labour disputes, such as mediation procedure or applying to the Government. The Government refers, in particular, to Article 8(2) and (3) of the International Covenant on Economic, Social and Cultural Rights and points out that under these provisions, a State may impose prohibition on the exercise of the right to strike by members of the armed forces, of the police, or of the administration of the State, but that nothing in this Article shall authorize States parties to Convention No. 87 to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention. The Committee recalls its basic position that the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87. It further recalls that in addition to the armed forces and the police (members of which could be excluded from the application of the Convention), the right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State and in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee considers that railway services and postal services do not constitute essential services. The Committee therefore once again requests the Government to amend the abovementioned legislative acts so as to bring its legislation into conformity with the Convention and ensure that workers of the federal courier communications, railway workers, municipal employees, as well as public servants who do not exercise authority in the name of the State, can exercise the right to strike. It requests the Government to indicate in its next report all measures taken in this respect.

The Committee had previously requested the Government to specify the categories of workers employed in the internal affairs agencies who are prohibited from striking. The Committee takes due note of the Government’s indication that members of the police, holding the rank and file or command posts, are prohibited from stopping their duties in order to solve a labour dispute.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008 alleging assault on a trade union activist and numerous violations of the right to strike. It requests the Government to provide its observations thereon, as well as on the 2006 comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC), also concerning restrictions imposed on the right to strike and the alleged violation of trade union rights in practice.

The Committee recalls that it had previously requested the Government to:

–           amend section 410 of the Labour Code, so as to repeal the obligation to indicate the duration of a strike, so as to allow trade unions to declare strikes of unlimited duration;

–           amend section 412 of the Labour Code, so as to ensure that any disagreement concerning minimum services in organizations responsible for safety, health and life of people and vital interests of society, where the minimum services must be ensured during a strike, is settled by an independent body having the confidence of all parties to the dispute and not the executive body;

–           amend section 413 of the Labour Code, so as to ensure that, when a strike is prohibited, any disagreement concerning a collective dispute is settled by an independent body and not by the Government;

–           to ensure that workers of postal services, municipal services and railways can exercise the right to strike and, to that effect, amend section 9 of the 1994 Federal Postal Service Act, section 11(1(10)) of the 1998 Federal Municipal Services Act and section 26 of the 2003 Federal Rail Transport Act;

–           to indicate whether there are any legislative restrictions imposed on the right to strike of civil servants other than civil servants exercising authority in the name of the State; and

–           to specify the categories of workers employed in the internal affairs agencies prohibited from striking.

The Committee recalls that it had previously noted the Government’s indication that the Ministry of Health and Social Development, together with the federal government authorities concerned and the social partners, had engaged in work to amend specific legislative acts so as to bring them into conformity with the recommendations of the ILO. The Committee notes from the Government’s report that a working group involving most representative social partners was created to that effect in 2008.

The Committee hopes that the work of the abovementioned working group will result in the near future in a legislative reform that will take into account its previous comments and requests the Government to provide information on any further developments in this respect. The Committee reminds the Government that it can avail itself of the technical cooperation of the Office if it so wishes.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

The Committee notes that, according to the Government, trade unions (their associations) established in the internal affairs agencies are prohibited from striking. The Committee requests the Government to specify the categories of workers this prohibition covers.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report. The Committee regrets that the Government failed to provide its observations on the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) concerning restrictions imposed on the right to strike and the alleged violation of trade union rights in practice. The Committee once again requests the Government to provide its observations thereon.

In its previous observation, the Committee had noted that the Labour Code was amended in 2006 and that several of its previous recommendations were not reflected in the amended Code. The Committee therefore once again requests the Government to take the necessary measures to modify the following sections of the Labour Code so as to bring it into conformity with Article 3 of the Convention:

–      section 410 of the Labour Code, so as to repeal the obligation to indicate the duration of a strike;

–      section 412 of the Labour Code, so as to ensure that any disagreement concerning minimum services in organizations responsible for safety, health and life of people and vital interests of society, where the minimum services must be ensured during a strike, is settled by an independent body having the confidence of all parties to the dispute and not the executive body;

–      section 413 of the Labour Code, so as to ensure that, when a strike is prohibited, any disagreement concerning a collective dispute is settled by an independent body and not by the Government.

The Committee further notes from the Government’s report that the right to strike is restricted or prohibited in the following services: postal services (section 9 of the Federal Postal Service Act of 17 December 1994), municipal services (section 11(1(10)) of the Federal Municipal Services Act of 8 January 1998) and railways (section 26 of the Federal Rail Transport Act of 10 January 2003), which the Committee does not consider essential, i.e. those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population and in which restrictions and even prohibition may be justified. The Committee is of the opinion that in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term. In the view of the Committee, such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 160–161). The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to take into account the abovementioned principle.

The Committee notes that no information was provided by the Government in respect of the right to strike of public servants not exercising authority in the name of the State (previously prohibited by section 11 of the Law on fundamentals of state employment). In this regard, the Committee notes that the Law on civil service of 27 July 2004 repealed the Law on fundamentals of state employment. While the new law does not seem to expressly prohibit the right to strike in civil service, the Committee notes that section 18(6) stipulates that “civil servants must observe restrictions imposed on civil servants by the legislation”. The Committee requests the Government to indicate whether there are any legislative restrictions imposed on the right to strike of civil servants other than civil servants exercising authority in the name of the State.

Finally, the Committee notes the Government’s indication that the Ministry of Health and Social Development, together with the federal government authorities concerned and the social partners, was currently engaged in work to amend specific legislative acts so as to bring them into conformity with the recommendations of the ILO. The Committee hopes that further legislative reform will take into account its previous comments and requests the Government to keep it informed of any further developments in this respect.

The Committee is addressing a request concerning other matters directly to the Government.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes with regret that the Government’s report has not been received. It further notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 2216 and 2251, which referred the legislative aspects of theses cases to the Committee of Experts (see 340th Report, March 2006).

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, which concern restrictions imposed on the right to strike and the alleged violation of trade union rights afforded by the Convention in practice. The Committee requests the Government to provide its observations thereon.

The Committee recalls that in its previous observations it had requested the Government to ensure that the drafted amendments to the Labour Code take into account the Committee’s previous requests to modify the following sections of the Labour Code or other legislative texts so as to bring them into conformity with Article 3 of the Convention:

–         section 410 of the Labour Code (providing that a minimum of two-thirds of the total number of workers of an enterprise should be present at the meeting and that the decision to stage a strike should be taken by at least half of the delegates present), so as to lower the quorum for a strike ballot, which the Committee considered too high and likely to impede recourse to industrial action, particularly in large enterprises;

–         section 410 of the Labour Code, so as to repeal the obligation to indicate the duration of a strike;

–         section 412 of the Labour Code, so as to ensure that any disagreement concerning minimum services in organizations responsible for safety, health and life of people and vital interests of society, where the minimum services must be ensured during a strike, is settled by an independent body having the confidence of all parties to the dispute and not the executive body;

–         section 413 of the Labour Code, so as to ensure that, when a strike is prohibited, any disagreement concerning a collective dispute is settled by an independent body and not by the Government; and

–         section 11 of the Law on Fundamentals of State Employment and the relevant section of the Law on the Federal Railway Transport, so as to ensure that railroad employees, as well as those engaged in the public service, who are not exercising authority in the name of the State, enjoy the right to strike.

The Committee regrets that several of its recommendations were not reflected in the amended Labour Code. Indeed, only section 410 of the Labour Code was amended so as to lower the quorum for adopting a decision to strike. It appears that, according to the new wording of this section, a workers’ assembly shall be deemed competent if at least half of the total workforce is present. The Committee requests the Government to provide a copy of the Law amending the Labour Code. Hoping that further legislative reform will take into account its previous requests, the Committee requests the Government to keep it informed of any further developments in this respect.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret that the Government’s report has not been received. The Committee notes the discussions in the Conference Committee on the Application of Standards in 2005. In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 2216, 2244 and 2251 (see 337th Report, June 2005).

The Committee further notes the comments on the application of the Convention submitted by the International Confederation of Free Trade Unions (ICFTU) which concern restrictions imposed on the right to strike and the alleged violation of trade union rights afforded by the Convention in practice. The Committee requests that the Government provide its observations on the ICFTU’s comments.

The Committee notes that the Labour Code is under review. It hopes that the drafted amendments will take into account the Committee’s previous request to modify the following sections of the Labour Code or other legislative texts so as to bring them into conformity with Article 3 of the Convention:

–      section 410 of the Labour Code (providing that a minimum of two-thirds of the total number of workers should be present at the meeting and that the decision to stage a strike should be taken by at least half of the number of delegates present), so as to lower the quorum for a strike ballot, which the Committee considered too high and likely to impede recourse to industrial action, particularly in large enterprises;

–      section 410 of the Labour Code, so as to repeal the obligation to indicate the duration of a strike;

–      section 412 of the Labour Code, so as to ensure that any disagreement concerning minimum services in organizations responsible for safety, health and life of the people and vital interests of the society, where the minimum services must be ensured during a strike, is settled by an independent body having the confidence of all parties to the dispute and not the executive body;

–      section 413 of the Labour Code, so as to ensure that when a strike is prohibited, any disagreement concerning a collective dispute is settled by an independent body and not by the Government; and

–      section 11 of the Law on Fundamentals of State Employment and the relevant section of the Law on the Federal Railway Transport, so as to ensure that railroad employees, as well as those engaged in the public service, who are not exercising authority in the name of the State, enjoy the right to strike.

The Committee asks the Government to keep it informed of the developments regarding the amendment of the Labour Code and provide a copy of the amended text as soon as it adopted.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report. In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2216 (see 332nd and 334th Reports, November 2003 and June 2004, respectively) and Case No. 2251 (333rd Report, March 2004). The Committee further notes with interest the new Law on Associations of Employers, 2002.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. In its previous observation, the Committee noted that according to section 11 of the Labour Code, restrictions provided for by federal law may apply to managers of organizations, personnel combining jobs, women, persons bearing family responsibilities, youth, state employees and others. It further noted that members of directors’ councils of the organizations (with the exception of members who concluded a labour contract with the organization) and persons whose relationship with an employer is regulated by the civil law contract were excluded from the scope of the Labour Code. On that occasion the Committee requested the Government to indicate whether any restrictions have been imposed on the right to organize of these workers and to provide clarification in respect of those persons considered to be regulated by a civil law contract, who are excluded from the scope of the Code. The Committee notes the Government’s indication that the Labour Code does not limit the right of workers to establish and join trade unions. Referring to section 11 of the Code, the Government points out that the labour legislation applies to all workers in a contractual relationship with employers.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. In its previous comments, the Committee requested the Government to amend section 410 of the Labour Code, which provided that a minimum of two-thirds of the total number of workers should be present at the meeting and the decision to take a strike should be taken by at least half of the number of delegates present, so as to lower the quorum required for a strike ballot. The Committee regrets that no information was provided by the Government in this respect. It therefore once again requests the Government to indicate the measures taken to lower the quorum for a strike ballot, which it considers too high and likely to impede recourse to industrial action, particularly in large enterprises.

The Committee further notes the Government’s indication that section 410 of the Labour Code, which requires workers’ organizations to indicate the duration of a strike, does not, however, prescribe a maximum duration of the strike. The Committee recalls that the mere fact of specifying the duration of the strike, even if it is not binding, impedes the right of workers’ organizations to organize their activities free from government interference. The Committee notes that the Committee on Freedom of Association in Case No. 2251 had also requested the Government to amend section 410 in this respect. The Committee therefore once again requests the Government to take the necessary measures in order to bring its legislation into conformity with the Convention and to keep it informed of the measures taken or envisaged in this respect.

In its previous comments, in the light of the Government’s statement that during a strike, the minimum services are to be ensured in every sector of activity, the Committee asked the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers. The Committee notes the Government’s indication that section 412 of the Code provides for an exhaustive list of organizations and enterprises where the minimum services must be ensured during a strike. These include organizations responsible for safety, health and life of the people and vital interests of the society. As regards the provision in section 412, that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee notes the Government’s statement that any such disagreement is settled following the procedure of collective labour dispute settlement. The Committee notes however that section 412 provides that any disagreement concerning "the establishment of minimum services should be settled by an executive body of the subject of Russian Federation". The Committee therefore once again requests the Government to amend its legislation so as to ensure that any disagreement concerning minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive body and to keep it informed of measures taken or envisaged in this regard.

The Committee notes that in Case No. 2251 the Committee on Freedom of Association requested the Government to indicate the enterprises and services it qualifies as "directly servicing highly hazardous kinds of production or equipment" where the right to strike is prohibited under section 413(1)(b) of the Labour Code. Furthermore, the Committee on Freedom of Association noted that section 17 of the Law on the Federal Railway Transport prohibits the right to strike for railroad employees and section 11 of the Law on Fundamentals of State Employment would appear to prohibit strikes in the public service not only for those who are engaged in the administration of the State, but for many other employees. The Committee, like the Committee on Freedom of Association, requests the Government to amend its legislation so as to ensure that railroad employees, as well as those engaged in the public service, who are not exercising authority in the name of the state, enjoy the right to strike. It requests the Government to keep it informed of the measures taken or envisaged in this respect.

As concerns section 413 according to which the decision on collective disputes during the period of emergency and in essential services, as well as when restrictions are provided for by the federal law, are made by the Government of the Russian Federation, the Committee notes the Government’s statement that in addition to efforts to resolve a dispute with the help of conciliation procedures, the parties could address the Government of the Russian Federation, which would make a decision within ten days. In this respect, the Committee notes that section 413 clearly states that in cases where a strike is prohibited, "the decision on a collective industrial dispute shall be issued by the Government of the Russian Federation". The Committee therefore once again recalls that, if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned which should provide sufficient guarantees of impartiality and rapidity (see General Survey on freedom of association and collective bargaining, 1994, paragraph 164). The Committee therefore requests the Government to review its legislation so as to ensure that in those cases any disagreement concerning a collective dispute is settled by an independent body and not by the Government and to keep it informed of measures taken or envisaged in this regard. Furthermore, recalling that restrictions on the right to strike can only be imposed in essential services and in the case of public servants exercising authority in the name of the State, the Committee once again requests the Government to transmit copies of any federal laws providing for restrictions on strike action.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information contained in the Government’s report. It further notes the adoption of the new Labour Code.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee takes note with satisfaction that the Labour Code of 2002 contains no reference to an imposed trade union monopoly.

The Committee notes that according to section 11 of the Labour Code, restrictions provided for by federal law may apply to managers of organizations, personnel combining jobs, women, persons bearing family responsibilities, youth, state employees and others. It further notes that members of directors’ councils of the organizations (with the exception of members who concluded a labour contract with the organization) and persons whose relationship with an employer is regulated by the civil law contract are excluded from the scope of the Labour Code. Recalling that this Article of the Convention provides that all workers, without distinction whatsoever should have the right to establish and join organizations in the furtherance and defence of their occupational interests, with the sole possible exception being that of armed forces and the police, the Committee requests the Government to indicate whether any restrictions have been imposed on the right to organize of these workers and to provide clarification in respect of those persons considered to be regulated by a civil law contract, who are excluded from the scope of the Code.

The Committee further notes the Government’s indication that a draft federal Law on Associations of Employers is in the process of preparation by the State Duma. The Committee requests the Government to provide a copy of this legislation as soon as it is adopted so that the Committee may examine its conformity with the provisions of the Convention.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee notes the Government’s indication that the Federal Law on the Procedure of Settling Collective Labour Disputes is no longer in force. However, the Committee notes with regret that the new Labour Code does not address the previous concerns of the Committee. Thus, regarding the quorum required for a strike ballot the Committee notes section 410 of the Labour Code, which provides that a minimum of two-thirds of the total number of workers should be present at the meeting and the decision to take a strike should be taken by at least half of the number of delegates present. Considering that the quorum set out for a strike is too high and may potentially impede recourse to strike action, particularly in large enterprises, the Committee requests the Government to amend its legislation so as to lower the quorum required for a strike ballot and to keep it informed of the measures taken or envisaged in this regard.

The Committee further notes that section 410 of the Labour Code maintains the obligation to declare a "possible" duration of the strike, whereas the Committee had previously indicated that requiring workers and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee requests the Government to amend its legislation so as to ensure that no legal obligation to indicate the duration of a strike is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.

Furthermore, the Committee notes section 412 of the Labour Code, which provides that in the event of a disagreement between the parties on the minimum services to be provided in organizations (enterprises) the activities of which ensure safety, health and life of the people, and vital interests of society, the decision is made by an executive body. However, the Committee notes from the Government’s report that minimum services are to be ensured in every sector of activity. In the view of the Committee, the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that user’s basic needs are met or that facilities operate safely or without interruption (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 160 and 162). The Committee asks the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and if that is the case, it requests the Government to amend its legislation so as to ensure that such a requirement is limited to the abovementioned cases. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, section 412 provides that the parties to collective bargaining may appeal the decision of the mentioned body to the courts. The Committee, however, considers that it is preferable for such disagreements to be resolved by an independent body in the first place, so as to avoid any possible delay that would be tantamount to a restriction of strike action. The Committee therefore requests the Government to amend its legislation so as to ensure that any disagreement concerning minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive body and to keep it informed of measures taken or envisaged in this regard.

The Committee notes that the right to strike may not be exercised during the period of emergency and in essential services as well as when restrictions are provided for by the federal law. In those cases, the Committee notes that section 413 provides that the decision on collective agreement disputes are made by the Government of the Russian Federation. In this respect, the Committee recalls that, if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned which should provide sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee therefore requests the Government to review its legislation so as to ensure that in those cases any disagreement concerning a collective agreement is settled by an independent body and not by the Government and to keep it informed of measures taken or envisaged in this regard. Furthermore, recalling that restrictions on the right to strike can only be imposed in essential services and in the case of public servants exercising authority in the name of the State, the Committee requests the Government to transmit copies of any federal laws providing for restrictions on strike action.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report.

Article 2 of the Convention.  In its previous comments, the Committee had noted the Government’s indication that the provision of the Labour Code, as amended in 1992, which appeared to maintain trade union monopolies at the enterprise level (section 230) had not been included in the draft Labour Code under preparation. The Committee notes from the Government’s latest report that the draft Labour Code is under the consideration of the State Duma and that the text will be sent to the Office after its adoption. The Committee recalls that section 230 refers to the rights of the trade union committee elected at the enterprise or workplace and thus leaves doubt about the possibility of more than one union existing at the same time in the same enterprise. The Committee trusts that this ambiguity will not be retained in the new Code and requests the Government to transmit a copy of the new Code as soon as it is adopted.

Article 3.  Referring to its earlier comments concerning the obligation to declare the duration of a strike under section 14(5) of the 1995 Act on procedures for the resolution of collective labour disputes, the Committee had noted the Government’s previous indication that workers who did not cease strike action on the day after the notified date on which the strike is to end may be subjected to disciplinary penalties under the Labour Code, including rebukes, reprimands or, as a last resort, dismissal. In its latest report, the Government indicates that, in accordance with sections 18 and 22 of the Act on procedures for the resolution of collective labour disputes, disciplinary punishment due to strike action may only be imposed in the event of non-compliance with a court order. The Committee further notes however that section 17 of the Act establishes that a strike is illegal if it was declared without regard for the time frames, procedures and requirements stipulated by the sections of the Act, including section 14. The Committee considers that forcing the employees and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The right to strike is effectively, by definition, a means of applying pressure which the workers and their organizations may use to promote and defend their social and economic interests and achieve satisfaction in their claims. The Committee therefore requests the Government to eliminate the obligation to notify the duration of the strike, and asks it to include details in its next report on the measures effectively taken in this connection.

Finally, the Committee notes the Government’s indication that, in its opinion, the Act on the procedure of the settlement of collective labour disputes sets out a clear-cut definition of the terms and conditions under which strike action is not available. The Committee considers however that the numerous requirements set out, in particular in sections 14 and 16 of the Act, concerning the declaration of a strike and the course of action during a strike could easily render strikes illegal on the basis of minor procedural flaws. The Committee notes, for example, that the failure to provide a minimum service may result in a strike being declared illegal under the Act, while the determination of the minimum to be provided will be made by the executive body or body of local self-government in cases where the parties have not been able to agree. In cases of disagreement concerning minimum services, however, the Committee considers that it is preferable for such disagreements to be resolved by an independent body. These and other requirements give rise to a rather complex and complicated procedure for the exercise of legal strike action that may place unnecessary obstacles to its exercise in practice. The Committee would therefore request the Government to consider reviewing and simplifying the Act so as to ensure that the requirements for undertaking legal strike action do not effectively hinder the right of workers’ organizations to organize their activities. Furthermore, it requests the Government to transmit copies of any recent relevant court judgements concerning the legality of strike action.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report.

Article 2 of the Convention. In its previous comments, the Committee had requested the Government to indicate whether the provisions of section 230 of the Labour Code, as amended in 1992, and which appeared to maintain trade union monopoly in enterprises, had been repealed. The Committee notes from the Government's report that, while this provision has not yet been repealed, it is not included in the draft Labour Code which has been prepared. The Committee requests the Government to keep it informed of developments in respect of the draft Labour Code and to transmit a copy of the text upon its adoption.

The Committee had noted that the application of the Act on trade unions of 1996 to trade unions of various categories of public employees was to be determined by the respective laws (Article 4). The Committee once again requests the Government to provide information on the laws in question and a copy of the relevant texts, particularly in respect of employees of Russian Federation internal affairs agencies, agencies of the Federal Security Service, Russian Federation customs agencies, Federal Fiscal Police Agencies, judges and prosecutors.

Article 3. The Committee noted that, according to section 14(5) the Act on procedures for the resolution of collective labour disputes of 1995, the decision to declare a strike had to indicate the duration thereof. The Committee had asked the Government to state what the consequences were, for workers or their organizations, when a strike exceeded the stated duration.

The Committee notes from the Government's report that workers who do not cease strike action on the day after the notified date on which the strike is to end may be subjected to disciplinary penalties under the Labour Code, including rebukes, reprimands or, as a last resort, dismissal. Recalling that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests, the Committee is of the view that requiring a precision to the duration of a strike would eventually be admissible only as a general indication on the part of the workers but should not be subject to disciplinary penalty, including dismissal, as it would restrict the right of workers' organizations to organize their activities and formulate their programmes. The Committee would ask the Government, including in the course of the revision of the Labour Code, to amend it's legislation to ensure that disciplinary penalties cannot be imposed for failure to end a strike on a predetermined date.

The Committee would also recall its previous comment that the Law on procedures for the resolution of labour disputes does not allow a clear determination of the circumstances in which strikes are authorized. It once again encourages the Government to endeavour to clarify the relevant provisions to ensure unambiguously the right of trade unions to organize their activities.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report. It notes with interest that the Act on procedures for the resolution of labour disputes, and the Act on trade unions were adopted on 23 November 1995 and 12 January 1996 respectively. It notes that these texts take account of some of its comments. However, it raises certain points which call for comments or additional information.

Article 2 of the Convention. According to the definition given under Article 3 (Basic Terms) of the Act on trade unions, a primary trade union organization is a "voluntary association of trade union members" working, as a rule, at one and the same enterprise, institution or organization, irrespective of form of ownership or subordination. The rules governing primary trade union organizations fall within the competence of the "trade unions" (Article 71). The Committee asks the Government to provide clarification regarding the right of workers to form, if they so wish, directly at the level of the enterprise, organizations of their choosing, which depend on no existing trade union.

Referring to its previous direct request, the Committee again asks the Government to state whether the provisions of section 230 of the Labour Code, as amended in 1992, and which appeared to maintain trade union monopoly in enterprises, have been repealed.

The Committee notes that the application of the Act on trade unions to trade unions of various categories of public employees must be determined by the respective laws (Article 4). The Committee asks the Government to provide information on the laws in question and a copy of the relevant texts, particularly in respect of employees of Russian Federation internal affairs agencies, agencies of the Federal Security Service, Russian Federation customs agencies, Federal Fiscal Police Agencies, judges and prosecutors.

Article 3. The Committee notes that, according to the Act on procedures for the resolution of collective labour disputes, the decision to declare a strike must indicate the duration thereof. The Committee asks the Government to state what the consequences are, for workers or their organizations, when a strike exceeds the stated duration.

The Committee further notes that under section 14(2), a strike can be called further to a vote requiring a 75 per cent quorum and a 50 per cent majority of those voting. The Committee considers that the cumulative effect of these provisions could prevent recourse to strike action, particularly in big enterprises and that the quorum requirement should be set at a reasonable level.

The Committee again asks the Government to state whether the Law on emergency powers of 3 April 1990, the Decree of the President of the USSR of 16 May 1991 and section 190.3 of the Penal Code, which contain major restrictions on the exercise of the right to strike and provide for severe penalties, including imprisonment for up to three years, have been repealed by a specific text, as the Committee requested in its previous comment.

The Committee considers that the Law on procedures for the resolution of labour disputes does not allow a clear determination of the circumstances in which strikes are authorized. It encourages the Government to endeavour to clarify the relevant provisions to ensure unambiguously the right of trade unions to organize their activities.

Article 7. The Act on trade unions (Article 8.1), expressly allows trade unions not to register. In this case, they do not acquire the rights deriving from legal personality. The Committee asks the Government to clarify this provision, in particular by stating what activities are authorized for trade unions which do not register.

The Committee reminds the Government that, should it so wish, it may avail itself of ILO assistance with a view to taking the measures necessary to proper application of the Convention.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report.

It recalls that its previous comments concerned the right of workers, without distinction whatsoever, to establish organizations of their own choosing and the right of organizations to organize their activities and formulate their programmes in full freedom without interference from the public authorities with a view to furthering and defending the interests of their members.

According to the information available to the ILO, the preliminary draft of the Bill respecting the settlement of collective labour disputes would appear to contain certain provisions which are not in accordance with the principles of freedom of association, and particularly the requirement of a majority of two-thirds of the employees in an enterprise to call a strike, the prohibition of strikes in the federal railways, public urban transport and maritime, air and river transport enterprises, the imposition by the Government of a compulsory minimum service during certain strikes, and the power of the President of the Russian Federation and the Government of Russia to suspend a strike for two months if it is of particular significance to the survival of the Russian Federation and its component territories. The Committee recalls that the right to strike is one of the means which should be available to workers and their organizations for the promotion of their economic, social and occupational interests and that the restriction or prohibition of the right to strike should be confined to strikes in the essential services, in the strict sense of the term, that is services whose interruption would endanger the life, personal safety or health of the whole or part of the population, or if it is liable to cause an acute national crisis, and then only for a limited period and to the extent necessary to meet the requirements of the situation. In the event that a strike is subject to restrictions, compensatory guarantees should be afforded to the workers concerned (see 1994 General Survey, paragraph 164). Finally, with regard to the requirement of a strike ballot, the law should ensure that account is taken only of the votes cast and the required quorum and majority should be fixed at a reasonable level; furthermore, in the event of restrictions on the right to strike in services which are not essential in the strict sense of the term, workers and their organizations should be able, if they so wish, to participate in defining the minimum service, along with employers and the public authorities.

The Committee therefore requests the Government to supply with its next report the legal texts which are being prepared or which have recently been adopted, to which it refers in its report, on the settlement of collective disputes, trade unions and the right of association of citizens. The Committee also requests the Government to state in its next report whether the legislative measures that are being prepared will specifically repeal: the Law on Emergency Powers of 3 April 1990; the Decree of the President of the USSR of 16 May 1990 and section 190(3) of the Penal Code, which contain important restrictions on the right to strike, combined with severe sanctions, including sentences of imprisonment for up to three years; and section 230 of the new Labour Code, as amended on 25 September 1992, which appears to have maintained the system of trade union monopoly at the enterprise level.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the Government's report.

1. Articles 3 and 10 of the Convention. Right of organizations to organize their activities freely and to formulate their programme of action without interference from the public authorities, in order to promote and defend the interests of their members.

(a) The Committee notes that the legislation still contains severe restrictions on the right of organizations to strike in order to defend the occupational interests of the workers (section 11 of the Law on the Settlement of Collective Labour Disputes of 9 October 1989 which prohibits strikes, in particular, in the urban rail transport sector including the Metro, civil aviation and the energy sector; the Law on Emergency Powers of 3 April 1990; section 5 of the Decree of the President of the USSR of 16 May 1991 on emergency measures to guarantee work stability in the branches of activity essential to the national economy, which allows strikes to be banned and severe penalties to be imposed, including fines for breaches of labour discipline and penalties of imprisonment of up to three years (section 14 of the Law of 9 October 1989; the Law on Emergency Powers of 3 April 1990; section 5(2) of the Decree of the President of the USSR of 16 May 1991; section 190(3) of the Penal Code).

The Committee is of the opinion that the restriction or prohibition of the right to strike should be confined to essential services in the strict sense of the term, namely services whose interruption would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey on Freedom of Association and Collective Bargaining, para, 159). The Committee asks the Government to indicate in its next report the measures taken or envisaged to bring section 11 of the Law on the Settlement of Collective Labour Disputes of 9 October 1989 into conformity with the above principle, so as to ensure that the legislation on emergency powers is not applied in such a way as to impair the principles of freedom of association in respect of the right to strike.

(b) With regard to certain other provisions concerning the exercise of the right to strike (sections 3, 7, 9 and 15 of the Law of 9 October 1989 on the Settlement of Collective Labour Disputes), the Committee asks the Government in its next report to provide detailed answers to the questions it raised under point 2 of its Direct Request of 1991.

2. Article 2. Right of Workers, without distinction whatsoever, to form organizations of their own choosing.

(a) The Committee asks the Government to indicate in its next report whether the Law on Trade Unions of 10 December 1990 applies to all workers without distinction as to nationality.

(b) The Committe has pointed out for many years that several provisions of the Labour Code, including section 230, which governed the rights of local factory or works trade union committees and their relations with the management of an enterprise, establishment or organization, were inconsistent with the requirements of Article 2 of the Convention. The Committee notes that the Act of 25 September 1992 amends section 230 and provides that "the rights of the locally elected trade union body in the enterprise, institution or organization and the guarantees of its activities are defined in the law, statutes, agreements and collective agreements". In these circumstances, the Committee considers that new section 230 seems to maintain trade union unity in enterprises. It draws the Government's attention to the importance that it attaches to the principle whereby minority organizations should be allowed to function and at least have the right to make representations on behalf of their members and to represent them in the case of individual grievances (see 1994 General Survey, op. cit., para. 98), and asks the Government to indicate in its next report the measures taken to guarantee the right of workers to join organizations of their own choosing.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

1. The Committee notes that the Law on public associations of 16 October 1990 recognises, in section 9, the right of foreigners or stateless persons to join public associations only if the statutes of such associations so provide.

The Committee asks the Government to indicate whether the Law on trade unions of 10 December 1990 is to be interpreted in the light of this provision or whether it applies to all workers without distinction, particularly as to nationality.

2. With reference to the Law on the settlement of collective labour disputes of 9 October 1990, the Committee:

(a) asks the Government to indicate whether the arbitration procedure provided for in section 3 is applied upon agreement of the two parties concerned or at the initiative of one of the two parties;

(b) draws the Government's attention to the fact that the requirement of a two-thirds majority of the votes of the members of the collective concerned or of the delegates to the assembly can constitute an obstacle to the calling of a strike (section 7); it asks the Government to indicate whether the majority in question is a majority of the total membership of the collective or of the workers taking part in the vote;

(c) asks the Government to indicate what the consequences would be for the workers on strike and their organisation if the strike exceeded the duration stated in the advance notice (section 7);

(d) asks the Government to provide information on the circumstances that may lead to postponement of a strike (section 9);

(e) notes that strikes are forbidden in several very broadly defined sectors: rail and urban transport including the Metro, civil aviation, and power production inter alia (section 11). The Committee recalls that the right to strike can be restricted or banned in essential services in the strict sense, i.e. services whose interruption might endanger the life, personal safety and health of the whole or part of the population. Furthermore, rather than prohibiting strikes in sectors which do not provide essential services in the strict sense of the term, it would be more in keeping with the principle of freedom of association to provide for the establishment of a minimum service to be defined in co-operation with all the parties concerned. The Committee would be grateful if the Government would provide information on any measures taken in this respect;

(f) asks the Government to indicate whether section 190(3) of the Penal Code is still in force; this provision lays down penalties of imprisonment of a maximum of three years or a fine for organising or actively participating in collective actions that disturb the public order, or are accompanied by a clear refusal to obey legal orders from representatives of the authority, or disturb the transport service of public or social enterprises or establishments;

(g) asks the Government to provide information on the scope of section 15 which provides that any damage to other enterprises, establishments, organisations or individuals caused by a strike, must be compensated for in conformity with the provisions of the legislation in force, indicating in particular where the responsibility for such compensation lies.

3. The Committee notes that under section 2 of the Order of the Supreme Soviet of the USSR, concerning the entry into force of the Law respecting trade unions of 10 December 1990, the Government must submit to the Supreme Soviet of the USSR, within the specified time-limit, proposals to amend and complete the Law of the USSR respecting the settlement of collective labour disputes, particularly the part concerning the responsibility for the organisation of unlawful strikes.

The Committee asks the Government to provide information on the measures taken to give effect to this provision.

4. The Committee notes the adoption of the Law on the state of emergency of 3 April 1990. Under the provisions of this Law, once it has been declared, the state of emergency may lead, inter alia, to a prohibition of rallies and strikes, enforceable by a maximum of three years imprisonment for leaders of prohibited strikes.

The Committee asks the Government to indicate whether, during the period covered by its next report, it has had recourse to these provisions.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to the comments it has been making for many years, the Committee notes with satisfaction the modifications introduced into the legislation regarding the leading role of the Communist Party, the possibility of trade union pluralism and the independence of trade unions, and the right of workers to resort to strikes to defend their interests.

1. The Committee notes in particular that section 6 of the Constitution of the USSR which laid down the leading role of the Communist Party over mass organisations, including trade unions, has been amended by the Law of the USSR adopted on 14 March 1990 and that, in accordance with the new wording of this provision, the Party participates in the development of Soviet state policy along with other political parties, trade unions, youth organisations and other public organisations.

2. The Committee also notes that the Law of the USSR on public associations of 16 October 1990 and the Law of the USSR on trade unions, their rights and the guarantees of their activities, of 10 December 1990 recognise the possibility of trade union pluralism. It notes in particular that section 2 of the Law on trade unions guarantees the right of workers, without any distinction, to establish voluntarily and without prior authorisation, unions of their choice, and to join trade unions, provided that they observe the statutes of the unions. It also notes that section 3 of the same Law provides that trade unions shall enjoy full independence in drafting and adopting their statutes, determining their structure, electing their officers, organising their activities, holding their meetings, conferences, plenary sessions and congresses.

3. Lastly, the Committee notes that the Law of the USSR on the settlement of collective labour disputes of 9 October 1990 recognises the right of workers, in certain circumstances, to resort to strikes to defend their occupational interests.

Furthermore, the Committee notes that the Order of the Supreme Soviet of the USSR concerning the entry into force of the Law of the USSR on trade unions provides that the Government of the USSR, in the course of the first half of 1991, shall align its decisions with the provisions of the Law of the USSR on trade unions and shall take measures for the review or abolition by the Ministries, State Committees and Government Directorates of the USSR of all the labour statutes, particularly any instructions which are contrary to this Law.

The Committee recalls that, in its previous comments, it drew the Government's attention to the provisions of the national legislation which established the pre-eminence of the local factory or works trade union committee for the representation of workers. It had pointed out that these provisions precluded the emergence of trade union organisations outside the existing trade union structure (Labour Code of 1971, Decree of the Presidium of the Supreme Soviet issuing regulations respecting the rights of the local factory or works trade union committee, of 27 September 1971).

Furthermore, the Committee notes that the Law of the USSR on the settlement of collective labour disputes of 9 October 1990 still refers to the works trade union committee as the only competent trade union body for the settlement of collective labour disputes.

The Committee therefore trusts that, in accordance with the above-mentioned Order of the Supreme Soviet, all the provisions of the national legislation will be amended so as to remove any legal ambiguity as to the possibility of genuine trade union pluralism and asks the Government to provide information on progress made in this respect.

The Committee is addressing a direct request to the Government for information on other points.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report and the debate and the comments at the Conference Committee in 1987.

It recalls that its comments dealt with the system of trade union monopoly, the links between the Communist Party and the trade unions and the right to meet being made subject to prior authorisation.

1. The right of workers to establish organisations of their own choosing without previous authorisation

In the comments that it has been making since 1960, the Committee has pointed out that any congress, conference or meeting, under the terms of Order No. 908 of 15 May 1935, was subject to prior authorisation. It considered that this Order could give the public authorities the possibility of opposing the establishment of a new organisation or a new federation or confederation by, for example, refusing authorisation for a constitutive assembly of an occupational organisation to meet.

In its previous reports, the Government on many occasions indicated that the provisions of this Order had never been applied to occupational organisations and that they were considered to have fallen into abeyance.

The Committee requested the Government to supply information on any change in the legislation in this respect.

In its last report, the Government indicates that Order No. 908 of 15 May 1935 has ceased to apply to the holding of congresses, conferences and meetings of co-operative organisations, trade unions and other social organisations, by virtue of Order No. 391 of the Council of Ministers of the USSR of 29 March 1988, and it supplies a copy of this Order which expressly provides in its title that Order No. 908 of 15 May 1935 partially ceases to be in force and, more specifically in the text itself, that Order No. 908 of 15 May 1935, "concerning authorisation for holding congresses, conferences and meetings" organised by co-operative organisations, trade unions and other social organisations is no longer in force.

The Committee notes with satisfaction the contents of Order No. 391 of 29 March 1988.

2. The right of workers to establish organisations of their own choosing outside the existing trade union structure

In its previous comments, the Committee noted several provisions of the Labour Codes of the federated republics and the regulations issued thereunder which establish the pre-eminence of the local factory or works trade union committee for the representation of workers, to the exclusion, in practice, of any other trade union organisation which might wish to act in defence of the occupational and economic interests of the workers in a factory or works, particularly in the RSFSR:

- section 7 of the Labour Code of 1971, which provides that collective agreements are concluded in the name of the employees by the local factory or works trade union committee with the administration of the enterprise or organisation concerned;

- section 230 of the Code, which deals with the rights of the local factory or works trade union committee and its relations with the management of an enterprise, institution or organisation, including: that of representing the interests of the workers in an enterprise, institution or organisation in the fields of production and work and of organising socialist competition jointly with the management and of promoting a communist attitude towards work;

- sections 231, 233, 234 and 235 of the Code, which deal with the powers and functions of the trade union committee; and - the Decree of the Presidium of the Supreme Soviet, issuing regulations respecting the rights of the local factory or works trade union committee, of 27 September 1971, which describes in detail the powers of these committees.

In its previous reports, the Government indicated that the Fundamental Principles Governing Labour Legislation of the USSR and the provisions of the Labour Codes of the federated republics do not prohibit the establishment of trade unions other than existing trade unions.

The Committee considered that, if a trade union were established outside the existing trade union structure, it would be impossible for it to exercise trade union activities to defend the occupational and economic interests of its members, since the 1971 Regulations respecting the rights of local factory and works trade union committees (and certain provisions of the Labour Code of the RSFSR) attribute these functions to the trade union committees of enterprises, institutions and organisations, which are bodies of the existing trade union structure, and it requested the Government to re-examine the legislation in order to guarantee workers, who so wish, the right to establish trade unions of their own choosing outside the existing trade union structure, in accordance with Article 2 of the Convention, and to indicate whether initiatives had been taken by workers to establish organisations that are independent of the existing trade union structure and, if this is the case, to indicate the results.

During the discussion in the Conference Committee in 1987 and in its last report, the Government once again stated that neither the Constitution, nor the Fundamental Principles Governing Labour Legislation, nor the Labour Code of the RSFSR restrict the number of occupational organisations in an enterprise. The State does not intervene in the internal workings of trade unions, which act in accordance with their by-laws, and the legislation does not provide for the registration of these by-laws. In the USSR, the trade unions participate in the management of the State since the legislation recognises their right to legislative initiative and to participate in the formulation of legislation. The new Act of 30 June 1987 on state enterprises (amalgamation), together with reforms in economic management, associates them more closely through workers' collectives in the management of enterprises on a new basis of collaboration between workers and management.

With regard to the 1971 Regulations, the Government indicates once again that no provision prohibits the establishment of trade unions. The Government emphasises the fact that the national legislation does not impose trade union monopoly; however, workers in the USSR are of the opinion that the unity of the trade union movement is the most important achievement of the workers and that the existence of several trade union organisations competing within the same country is prejudicial to the workers' struggle for their rights. The Government repeated its previous declarations to the effect that trade union unity in the USSR had happened immediately after the socialist revolution in 1917. It admits, however, the need to improve trade union legislation and announces that proposals have been made to adopt a special law on trade unions to define the rights of workers, the functions, duties and role of trade unions and to empower them to reject any Government decision that is contrary to the interests of the workers and has been taken without the agreement of the trade unions, thereby giving the trade unions the role of a counterbalance to technocratic powers. The Government also supplied statistical data on the increase in the functions of trade unions and indicates in reply to the Committee's observation on this point that it has no information available on whether initiatives have been taken by workers to establish workers' organisations that are independent of the existing trade union structure.

The Committee notes these statements and this information and observes that the new Act on state enterprises of 1987 grants the work collectives - which includes workers, work-team leaders, foremen, specialists and representatives of management and the Party, trade union, young communists and other public organisations - greater independence in the management of the enterprise. It also notes that Decree No. 8430-XI of the Presidium of the Supreme Soviet of the USSR of 4 February 1988 introduces the self-management system for work collectives, and gives the works trade union committee greater power of control over the dismissal of managerial-level employees in the enterprise.

While noting these measures, the Committee points out that the principles of Convention No. 87 do not have the effect of supporting either trade union unity or trade union pluralism. The purpose of the Convention is to make trade union pluralism possible in all cases. In the Committee's opinion, the national legislation, and particularly the 1971 Regulations, which attribute trade union functions solely to the bodies of the existing trade union structure, restrict the possibility of other organisations, should they be established outside this structure, exercising trade union functions to further and defend the interests of their members and are liable to restrict the interest of workers in establishing other trade union organisations outside this structure.

The Committee notes the Government's reaffirmed wish to pursue dialogue and trusts that it will take into account the Committee's comments, in the context of its enterprise reforms, and that it will be possible to take measures to lift the legislative restrictions and recognise the rights and functions necessary to defend and further the interests of the members of any trade union that might be established outside the existing structure.

3. The leading role of the Communist Party

In its previous comments, the Committee noted that under the terms of the Constitution - and in particular of section 6, under which the Communist Party of the Soviet Union is the leading and guiding force of Soviet society and the nucleus of its political system, of all state organisations and social organisations - that the Party determines the general perspectives of the development of society within which trade unions must act, which, contrary to the provisions of Article 3 of the Convention, does not guarantee trade unions the right to exercise their activities freely and in full independence.

In its report, the Government emphasises once again the fact that the relations between the Party and the trade unions do not affect the application of the Convention since this relationship is of a political and not a legal nature. The Government points out that the Party and the trade unions have common objectives and that the role of the Party, as the historic guide of the trade union movement, is to increase the role of trade unions in all spheres of activity in the country without the Party exercising trade union activities. The Government points out that section 7 of the Constitution provides that trade unions participate in managing the State and in deciding political, economic and social matters in accordance with the functions accorded to them by the law. Trade unions act in full independence and the statutes of trade unions adopted at the XVIIIth Congress contain no provisions that give the Party the right to restrict the freedom or activities of trade unions, which are independent, non-political, mass organisations.

The Committee notes these statements and observes that the principle laid down in section 6 of the Soviet Constitution is taken up again in section 6 of the 1987 Act on state enterprises (amalgamation) which provides that the Party organisation in the enterprise is the political nucleus of the work collective, that it functions within the framework of the Constitution of the USSR and that it guides the work of the entire collective and its self-management bodies, trade unions, young communists and other public organisations, and that it supervises the activities of management.

The Committee is therefore once again bound to draw the Government's attention to the importance of the indepedence of trade unions, which is an indispensable condition to enable them to play the role of defending and promoting the interests of their members. In the Committee's opinion, the relationship established by the national legislation between the Party and trade union organisations is contrary to Article 3 of the Convention since the State, as the legislator, through this provision restricts the rights of such organisations to organise their activities and formulate their programmes.

The Committee hopes that it will be possible to re-examine these matters in the light of its comments. It requests the Government to report on any measures that have been taken or are envisaged to ensure that the legislation is in conformity with the Convention with regard to the right of workers to establish trade union organisations outside the existing trade union structure, should they so wish, and the right of workers' organisations to organise their activities and formulate their programmes in full independence and without interference from the public authorities.