Informe provisional - Informe núm. 330, Marzo 2003

1. 207. The Committee has examined the substance of this case on several occasions, when it presented interim reports to the Governing Body [324th Report, paras. 133-218, 325th Report, paras. 111-181, 326th Report, paras. 210-244 and 329th Report, paras. 217-281, approved by the Governing Body at its 280th, 281st, 282nd and 285th Sessions (March, June and November 2001 and November 2002)]. The Belarusian Free Trade Union (BFTU) sent additional information relating to this case in a communication dated 4 February 2003 and the Congress of Democratic Trade Unions (CDTU) submitted new allegations in a communication dated 5 February 2003. The Belarusian Trade Union of Air Traffic Controllers (BPAD) joined the complaint and submitted new allegations in a communication dated 6 February 2003. Finally, the International Confederation of Free Trade Unions (ICFTU) sent supplementary information in a communication dated 19 February 2003.
2. 208. The Government transmitted additional information in reply to the Committee in a communication dated 4 January 2003.
3. 209. Belarus has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 210. At its November 2002 session, the Governing Body approved the following recommendations in the light of the Committee’s interim conclusions:
2. (a) Recalling that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided, the Committee cannot but condemn the manipulation of the trade union movement apparently intended by the issuance of Decree No. 1804 terminating check-off facilities, only to be restored once the leadership of the FPB had changed.
3. (b) The Committee urges the Government to ensure in the future that all decisions concerning the participation of workers’ organizations in tripartite bodies, both national and international, are taken in full and meaningful consultation with the trade unions whose representativeness has been objectively proved.
4. (c) Recalling that the right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to effectively promote the interests of their own members, the Committee strongly urges the Government to institute an independent investigation immediately into the allegations relating to government interference in trade union elections, with the aim of rectifying any effects of this interference, including, if necessary, the holding of new elections in circumstances where an independent body with the confidence of the workers concerned can ensure that there will be no interference, pressure or intimidation by the public authorities. The Committee requests the Government to keep it informed of the progress made in this regard.
5. (d) Regretting that certain declarations in the speech of the President of Belarus to the FPB Congress in September 2002 represent a clear attempt to transform the trade union movement into an instrument for the pursuance of political aims, the Committee urges the Government to refrain from any further such attempts in the future so that the Belarus trade union movement may act in full freedom and independence.
6. (e) The Committee strongly urges the Government to investigate the circumstances surrounding the dismissal of Mr. Evgenov and, if it is found that he was dismissed for not working on the subbotnik or for any other reason related to his trade union activity, to ensure that he is reinstated in his post with full compensation for any lost wages and benefits. The Government is requested to keep the Committee informed on the measures taken in respect of the reinstatements of Mr. Evgenov, Mr. Evmenov and Mr. Bourgov.
7. (f) Regretting that the Government has provided no information in respect of its previous recommendations, the Committee once again requests the Government to keep it informed of the progress made in instituting independent investigations into: the allegations of threats of dismissal made to members of the GPO “Khimvolokno” Free Trade Union and to the members of the Free Trade Union at the “Zenith” Plant; the allegations of the refusal to employ the re-elected chairperson of the Free Trade Union of Metalworkers at the Minsk Automobile Plant, Mr. Marinich; the questions surrounding the establishment of a regional trade union of electronics industry workers by the Research and Production Association of the Integral Amalgamation and the decision taken at the Tsvetotron Plant to affiliate to the new regional union; and the allegations concerning threats and pressure placed upon the workers at the Rechitskij Hardware Plant in Gomel to leave the branch union and set up new unions. The Government is also requested to keep the Committee informed of the outcome of these investigations.
8. (g) The Committee urges the Government to take the necessary measures to ensure that the BFTU trade union at the Khimvolokno State Production Amalgamation is registered immediately and to eliminate all obstacles to trade union registration which had been noted in its previous reports. It requests the Government to keep it informed of all measures taken in this regard.
9. (h) The Committee urges the Government to provide information on the measures taken in respect of its previous recommendations on the following points: the need to amend Presidential Decree No. 8 so that workers’ and employers’ organizations may benefit freely, and without previous authorization, from the assistance which might be provided by international organizations for activities compatible with freedom of association; the need to initiate an independent investigation into the allegations raised by the BFTU concerning the unlawful entry into union premises and the confiscation and destruction of union property and papers and to ensure that any confiscated property and papers are promptly returned to the union; and the need to amend Presidential Decree No. 11 so as to ensure that restrictions on pickets are limited to cases where the action ceases to be peaceful or results in a serious disturbance of public order and so that any sanctions imposed will be proportionate to the violation incurred.
10. B. The complainants’ additional allegations
11. 211. In its communication dated 4 February 2003, the Belarusian Free Trade Union (BFTU) transmits additional information concerning the continuing harassment and anti-union discrimination of trade union activist, Mr. Evmenov. By a communication dated 5 February 2003, the Congress of Democratic Trade Unions (CDTU) presented new allegations relating to continuing favouritism of the Federation of Trade Unions of Belarus (FPB) and discrimination of all other trade unions. The Belarusian Trade Union of Air Traffic Controllers (BPAD) submits new allegations on 6 February 2003 concerning anti-union discrimination on the part of management and interference in its internal affairs by state bodies. Finally, the International Confederation of Free Trade Unions (ICFTU), in its communication of 19 February 2003, contends that the Government has taken no concrete steps to implement the Committee’s recommendations and provides supplementary information of anti-union discrimination and Government interference, including specific allegations relating to the Minsk regional trade union organization of employees of the cultural sphere.
12. C. The Government’s further reply
13. 212. In its communication dated 4 January 2003, the Government recalls that the Council of Ministers adopted Order No. 1282 respecting deductions from workers’ wages for the purpose of bank transfers on 18 September 2002. This established the right to deduct trade union dues from workers’ wages for the purpose of effecting bank transfers to trade union accounts. The Government emphasizes once again that the adoption of Council of Ministers Order No. 1804 of 14 December 2001 respecting measures to safeguard the rights of trade union members was prompted by the fact that employers were seriously in arrears with payments of the amounts deducted from workers’ wages. Order No. 1804, in essence, eliminated automatic deductions of trade union dues without the knowledge of workers and without regard to the means available to the enterprise. Deductions of trade union dues are now made only with the written consent of the workers concerned. The Government also points out that in December 2002 the parties added supplementary provisions to the 2001-03 general agreement between the Government, republic-level employers’ associations and trade unions in order to facilitate direct bank transfers of trade union dues.
14. 213. Great importance is attached in Belarus to consultation between the state authorities and social partners on the major issues of social and economic development, and to the work of the tripartite consultative bodies. The social partners are required to be involved in drawing up any legislation with a bearing on citizens’ social and labour rights. In Belarus, such matters are dealt with by the National Council for Labour and Social Issues. This is a consultative body in which representatives of the Government, employers and workers participate on an equal basis. Its most recent sittings took place on 9 August and 4 December 2002.
15. 214. During the 9 August 2002 meeting, the National Council decided to set up a permanent tripartite “group of experts on issues relating to the application of the ILO’s international labour standards”. The regulations of the group were approved by the National Council at its meeting of 4 December 2002. The group of experts was set up at the initiative of the Ministry of Labour and Social Protection with a view to implementing the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The work of the group is directed towards ensuring a constant process of consultation between Government, employers and trade unions on the implementation in Belarus of international Conventions and Recommendations, as well as other aspects of cooperation between Belarus and the ILO.
16. 215. The Government has examined the questions concerning union elections raised in the Committee’s report. As indicated in previous observations, the Government does not interfere in the internal affairs of trade unions. Such matters are governed by the Trade Unions Act and the unions’ own by-laws. At the same time, the Government has shown that elections in the Federation of Trade Unions of Belarus (FPB) and branch unions complied with national law and union by-laws. The FPB elections were held in an open and transparent way. Leonid Kozik was elected to the post of President of the Federation in accordance with point 5.7.6 of the Federation’s by-laws.
17. 216. Further to information already supplied by the Government, Mr. Yaroshuk was elected Chairman of the National Committee of the Union of Agro-Industrial Workers at that Committee’s 8th plenary sitting on 15 April 1999, but was released from his post on 10 September 2002, also by decision of the plenary, fully in accordance with points 7.5, 7.6 and 11.3 of the union’s by-laws.
18. 217. Mr. Mirochnik was released from his post as Chairman of the Brest district trade union association by a general meeting of the association, in accordance with the relevant regulations. Of the 198 delegates present at the meeting, only two did not support the move. Mr. Kovsh was released from his post as Chairman of the Brest district committee of the Trade Union of Education and Science Workers at his own request, following his retirement.
19. 218. As regards the dismissals of Mr. Evgenov, Mr. Evmenov and Mr. Bourgov, the Government set out its position in detail in earlier comments. At this time, the Government noted that these workers were dismissed entirely in accordance with legislation, and this has been confirmed on a number of occasions by the courts.
20. 219. Furthermore, in its previous comments the Government drew attention to the lack of evidence to support allegations that members of the Free Trade Union of Belarus at the “Khimvolokno” Production Association in the city of Grodno and at the “Zenith” plant in Mogilev had been threatened with dismissal. According to the Government, no workers have been dismissed at these plants.
21. 220. The Government also states that it had provided detailed clarification with regard to the establishment of a regional trade union for workers employed at the “Integral” Research and Production Association and the disaffiliation of the primary trade union organization at the “Tsvetotron” plant in Brest from the branch union representing workers in the radio-electronics industry. It reiterated its previous points and indicated that the reason given for the disaffiliation was a disagreement between the primary union organization and the branch union regarding the contributions to the union’s republic-level committee. A total of 1,250 workers (out of 1,517 workers at the Plant) joined the new primary organization.
22. 221. As regards the disaffiliation of the primary trade union organization of the Belarus Metallurgical Plant from the branch metalworkers’ union, the Government reiterates that the reason for this was the absence of the necessary collaboration between the republic-level council of the metalworkers’ union and the primary trade union organization at the Belarus Metallurgical Plant, as well as the numerous proposals from workers to establish an occupational metalworkers’ union. The primary trade union organization at the Belarus Metallurgical Plant thus, in accordance with its union by-laws and with legislation, established the Trade Union of Metallurgical Workers at the Belarus Metallurgical Plant and disaffiliated from the republic-level council of the metalworkers’ trade union. More than 14,500 workers at the plant (97 per cent of the total workforce) have joined the new union.
23. 222. The Government also refers to its previous replies in respect of Presidential Decree No. 8 of 12 March 2001 on certain measures to improve the procedures for receiving and using non-reimbursable foreign aid. At that time, it had indicated that the established procedure for registering such aid was simple and took little time. The Decree does not prevent trade unions from receiving foreign assistance intended to help them carry out their statutory duties. In 2002, the Department for Humanitarian Assistance received seven applications from trade unions wishing to register foreign aid, all of which were granted.
24. 223. On 7 May 2001, Presidential Decree No. 11 (“respecting measures to improve procedures for organizing meetings, rallies, public marches and demonstrations or other such mass events and picketing in the Republic of Belarus”) was adopted. According to point 1.5 of the Decree:
25. [...] political parties, trade unions and other organizations whose officials fail to establish appropriate procedures for organizing or holding meetings, rallies, public marches, demonstrations and picketing shall, if this results in serious [financial] loss infringements of the rights and legitimate interests of citizens or organizations, or prejudice to the interests of the State or society, be liable to closure in accordance with the established procedure for responding to violations of legislation respecting meetings, rallies, public marches, demonstrations and picketing.
26. “Serious loss” here is understood to mean the loss of any sum equivalent to at least 10,000 times the minimum wage established on the day the violation occurs. “Infringements of the rights and legitimate interests of citizens or organizations, or prejudice to the interests of the State or society” are understood to mean disruption of the event itself, temporary stoppage of an organization’s operations, disruption of transport, loss of life, or serious physical injury to one or more individuals.
27. 224. Negligence and irresponsibility in the organization of mass demonstrations, etc. may have very serious consequences. These may arise not only if the event ceases to be peaceful but in a number of other situations: poor organization of crowds leaving or entering, e.g. sports venues, use of public transport when leaving the scene, failure to keep to an agreed route, failure to observe safety regulations during a demonstration, etc. Decree No. 11 provides for the possibility of closing down organizations that fail to observe established procedures for organizing public demonstrations. However, such violations leading to serious loss, infringements of the rights and interests of citizens or organizations, or prejudice to the interests of the State or society, do not automatically mean that the organization responsible will be closed down. This is possible only when established legal procedures are followed, which means that a court order is needed and must take into account all the relevant circumstances. It is also possible to lodge an appeal against any such decision. Since the adoption of the Decree on 7 May 2001, there have been no closures of trade unions as a result of violations of the established procedures for holding public demonstrations in Belarus.
28. 225. In conclusion, the constructive nature of the Committee’s recommendations is assisting efforts in the Republic to strengthen social dialogue and promote the development of social partnership. The Government is currently considering questions relating to trade union registration and proposals for improving legislation in this area. In 2002, a number of steps were taken to develop constructive collaboration between the Government, trade unions and employers’ organizations. The Ministry of Labour and Social Protection and the social partners have formulated a set of proposals on priority areas for cooperation between Belarus and the ILO; the right to have trade union dues transferred has been established; the National Council for Labour and Social Issues has been reactivated; and a tripartite Group of Experts on the application of ILO standards has been established.
29. 226. The Government of Belarus is confident that these positive trends in the development of social dialogue and tripartism in Belarus will be maintained in 2003. This should enable Case No. 2090 to be settled very quickly.

D. The Committee’s conclusions

1. 227. The Committee notes that the pending allegations in this case concern: serious interference by government authorities with trade union activities and elections, in particular as concerns the presidency of the trade union federation; dismissals of Mr. Evgenov, Mr. Evmenov and Mr. Bourgov and threats of dismissal against members of the GPO “Khimvolokno” and “Zenith” Free Trade Unions; refusal to employ the re?elected chairperson of the Free Trade Union of Metalworkers at the Minsk Automobile Plant, Mr. Marinich; non-registration of the BFTU trade union at the Khimvolokno State Production Amalgamation; and interference in internal trade union activities by virtue of Presidential Decrees Nos. 8 and 11.
2. 228. In the first instance, the Committee notes with regret that the recent reply from the Government does little more than reiterate previous comments made by the Government to the Committee. It regrets, in particular, that the Government has provided no new information on measures taken to implement the Committee’s previous recommendations, which had been based on a careful analysis of the complainants’ allegations and the Government’s replies.
3. 229. As concerns the most urgent of the Committee’s previous recommendations – the need to institute an independent investigation into the allegations relating to government interference in trade union elections, with the aim of rectifying any effects of this interference – the Committee notes that the Government merely repeats previous statements that the elections were carried out in accordance with the law and the relevant by-laws. The Government has not, however, provided any information as to the efforts made to establish an independent investigation into these matters, inspiring the confidence of all parties concerned, so that the doubts cast over the elections of the Federation of Trade Unions of Belarus (FPB), the Agricultural Sector Workers’ Union (ASWU), the Brest Regional Association of Trade Unions and the Brest Regional Committee of Science and Education Unions can be either fully dispelled or appropriately redressed. The Committee therefore once again urges the Government to establish independent investigations, having the confidence of all parties concerned, into the allegations of government interference in the abovementioned elections, with the aim of rectifying any effects of this interference, and to keep it informed of the progress made in this regard.
4. 230. The Committee further notes the Government’s indications that the social partners are involved in drawing up legislation relating to citizens’ social and labour rights through the tripartite National Council for Labour and Social Issues and that this Council has decided to set up a permanent tripartite “Group of Experts on issues relating to the application of the ILO’s international labour standards”. It notes from the corresponding Regulations that the Group of Experts is also to be tripartite. In light of the allegations in this complaint concerning serious obstacles to the free functioning of independent workers’ organizations, and recalling that, when setting up joint committees dealing with matters affecting the interests of workers, governments should make appropriate provision for the representation of different sections of the trade union movement having a substantial interest in the questions at issue [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 944], the Committee requests the Government to provide information on the extent to which alternative organizations representing workers, such as those present in the complaint, may participate in the various national tripartite bodies, such as the National Council for Labour and Social Issues and the Group of Experts on issues relating to the application of international labour standards and to reply to the complainants’ new allegations in this regard.
5. 231. As concerns the dismissal of three trade union leaders for refusal to work on their day off (unpaid voluntary labour, known as “subbotnik”), the Committee notes the Government’s reiteration that these individuals were dismissed in accordance with the law and that the courts confirmed this. The Committee must, however, once again recall that it had already examined the dismissals of two of the trade union leaders, Mr. Evmenov and Mr. Bourgov and found that they were not justified. The Committee thus urged the Government to take the necessary measures to ensure the reinstatement in their posts of these two trade unionists with full compensation for any lost wages and benefits [see 324th Report, para. 212; 325th Report, paras. 175-177; and 329th Report, para. 276]. In the absence of any new information justifying the dismissal of Mr. Evgenov, apparently also dismissed for refusing to work the “subbotnik”, the Committee would also request the Government to take the necessary measures to ensure that he is reinstated in his post with full compensation for any lost wages and benefits. The Government is requested to keep the Committee informed of the measures taken in respect of the reinstatements of these three trade union leaders and to reply to the new allegations made in respect of Mr. Evmenov.
6. 232. While regretting that the Government has not provided any information on the measures taken to institute independent investigations into the threats of dismissal made to members of the GPO “Khimvolokno” Free Trade Union and to the members of the Free Trade Union at the “Zenith” Plant, the Committee takes due note of the Government’s statement that there is no evidence to support these allegations and that no workers have been dismissed at these plants. The Committee would recall, however, that, when it first examined these allegations [see 324th Report, para. 209], the Government had provided the same reply, despite the documents attesting to such pressure accompanying the initial complaint (including allegations of anti-union tactics carried out by the enterprises in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to workers). Recalling that such acts are contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration [see Digest, op. cit., para. 760], the Committee once again requests the Government to institute independent investigations into the allegations of anti-union tactics made in respect of the GPO “Khimvolokno” Free Trade Union and the Free Trade Union at the “Zenith Plant” and to keep it informed of developments in this regard.
7. 233. The Committee notes that the Government merely repeats its previous statements concerning the establishment of the regional trade union for workers at the “Integral” Research and Production Association and the disaffiliation of the primary trade union organization at the “Tsvetotron” plant in Brest from the branch union representing workers in the radio-electronics industry. The Committee would recall, however, that it had thoroughly examined this question at its meeting in May-June 2001 on the basis of the detailed allegations presented by the complainants [see 325th Report, paras. 169-171]. The Committee would therefore once again urge the Government to institute an independent investigation into the allegations of managerial pressure for the establishment of a regional trade union of electronics industry workers and for the affiliation of the Tsvetotron plant to the new regional union and to keep it informed of the outcome of the investigation.
8. 234. Furthermore, noting that the Government has not replied to the alleged refusal to employ the re-elected chairperson of the Free Trade Union of Metalworkers at the Minsk Automobile Plant, Mr. Marinich, the Committee requests the Government to provide information on this point and invites the complainants to provide any additional information it might have as to the current status of Mr. Marinich.
9. 235. Noting that the Government has also not indicated the measures taken to implement its previous recommendation concerning the Belarusian Free Trade Union at the Khimvolokno State Production Amalgamation, the Committee once again urges the Government to take the necessary steps for the registration of this trade union and to eliminate any remaining obstacles to trade union registration noted in its previous reports [see 324th Report, paras. 197-202]. It requests the Government to keep it informed of all measures taken in this regard.
10. 236. Furthermore, the Committee notes that the Government merely repeats its previous observations with respect to Presidential Decrees Nos. 8 and 11. While duly noting the Government’s indication that these decrees have not been used either to refuse any requests for foreign assistance or to dissolve unions, the Committee must recall its previous conclusions that the powers granted in these decrees permit serious interference with the right of workers’ and employers’ organizations to formulate their programmes and organize their activities freely [see 326th Report, paras. 238 and 242]. The Committee therefore once again urges the Government to amend Presidential Decree No. 8 so that workers’ and employers’ organizations may benefit freely, and without previous authorization, from the assistance which might be provided by international organizations for activities compatible with freedom of association and Presidential Decree No. 11, so as to ensure that restrictions on picketing and other demonstrations called by workers’ or employers’ organizations are limited to cases where the action ceases to be peaceful or results in a serious disturbance of public order and so that any sanctions imposed will be proportionate to the violation incurred.
11. 237. Finally, the Government is requested to reply urgently to the new allegations and supplementary information transmitted in the complainants’ communications of February 2003.