Solicitud directa (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

The Committee notes with interest the information contained in the Government’s first report. It wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. Right of workers and employers to establish organizations of their own choosing. The Committee notes that section 2(9) of the Law on Trade Unions provides that a trade union can be formed on the initiative of not less than 100 persons. The Committee recalls that, although a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee considers that the minimum 100 members requirement is too high when the trade union in question is a trade union at the enterprise level and which is not a primary trade union. The Committee requests the Government to indicate whether independent trade unions formed at the enterprise level must indeed have 100 members and, if so, to take necessary measures to amend this requirement so as to ensure that the right to organize is effectively guaranteed at the enterprise level.

The Committee further notes that section 7(2) of the Law provides for the obligation to register the statutes of a trade union or a federation of trade unions, their amendments and supplement "in accordance with the procedure established by the legislation". However, the law does not provide for such a procedure. The Committee requests the Government to indicate any applicable procedure for registration of trade unions.

Article 3. The Committee notes that according to section 5(2) of the Law on Trade Unions, trade unions are forbidden from association with any political party (association). The Committee believes that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right mean that workers’ organizations must be able to voice their opinion on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee is of the view that legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is desirable, so that a reasonable balance can be achieved between legitimate interests of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, 1994, paragraphs 131 and 133). The Committee requests the Government to indicate the types of activities prohibited by this provision.

The Committee notes that under section 12(2) of the Law on the Procedure for the Settlement of Collective Disputes, a strike can be called further to a vote requiring a 75 per cent quorum and a majority of those voting. The Committee considers that this quorum set out for a strike could prevent recourse to strike action, particularly in big enterprises and that the quorum requirement should be set at a reasonable level. The Committee further notes that, according to section 12(5)(b) of the Law, the duration of the strike should be indicated in an advance notice. The Committee recalls that the supervisory bodies have already indicated that forcing 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 therefore requests the Government to amend its legislation so as to ensure that no legal obligation to indicate duration of a strike action is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.

The Committee also notes that according to section 12(5)(d) a proposal of minimum services should be indicated in an advance notice. Section 14(4) further provides that in the case of failure to reach an agreement, minimum required services are established by the bodies of executive authority, local self-governing and administrative bodies. 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. The 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 users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, 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 so, it requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to abovementioned cases. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Moreover, the Committee notes that according to section 15(2) and (9) of the Law on the Settlement of Collective Disputes, some workers appear to be excluded from exercising the right to strike and it is the President of Georgia who makes the decision on the settlement of a collective labour dispute for these workers. However, this section does not specify the category of workers excluded. The Committee recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. If the right to strike is subject to restriction or a prohibition, workers who are 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. It is essential that the latter be able to participate in determining and implementing the procedures, which should furthermore provide sufficient guarantees of impartiality and rapidity (see General Survey, 1994, paragraph 164). The Committee requests the Government to indicate any categories of workers which might be excluded by relevant legislation from exercising their right to strike and to provide copies of these laws. It further requests the Government to review its legislation so as to ensure that in the event of a labour dispute, workers who are deprived of the right to strike are afforded with compensatory guarantees for the settlement of the dispute by an impartial and independent body and not by the President. The Committee requests the Government to keep it informed of measures taken or envisaged in this regard.

Lastly, the Committee notes section 18 of the Law, which provides that persons holding an illegal strike bear responsibility in accordance with the legislation of Georgia. In respect to the right to strike, the Committee considers that any sanction should not be disproportionate to the seriousness of the violation (see General Survey, 1994, paragraph 178). The Committee requests the Government to indicate the provisions relevant to the sanctioning of illegal strike action.

Article 6. Rights of federations and confederations. The Committee notes with interest that most of the provisions of the Law on Trade Unions concerning rights of trade unions expressly afford the same rights to federations of trade unions. However, section 13, which provides for the right to participate in settling of collective labour dispute, including strike action, does not mention expressly that this right is also afforded to federations. The Committee requests the Government to indicate whether federations of trade unions may also call for a strike action in defence of their member interests.

The Committee notes the Government’s indication that the Law of Georgia on Employers of 28 October 1994 furthermore ensures the provisions of the Convention. It requests the Government to forward a copy of this legislation with its next report.