Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 331, Junio 2003

1. 660. The complaint is contained in a communication dated 28 February 2002 from the Central Committee of the Trade Union of Water Transport Workers of the Russian Federation (PRVT). The Federation of Independent Trade Unions of Russia (FNPR) associated itself with the complaint in a communication dated 20 March 2002. The PRVT sent additional information in a communication dated 22 May 2002.
2. 661. The Committee has been obliged to postpone its examination of the case on two occasions [see 328th and 329th Reports, paras. 4 and 5 respectively]. At its meeting in March 2003 [see 330th Report, para. 8], the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. To date the Government has sent no observations.
3. 662. The Russian Federation 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. The complainant’s allegations

1. 663. In its communications dated 28 February and 22 May 2002, the PRVT alleges that the administration of the Open Stock Company (OAO) “Novorossiisk Commercial Sea Port” has violated the right of the primary trade union organization of the Azov-Black Sea Interregional Organization of the PRVT to organize its administration and activities by exercising pressure on workers to change their affiliation to another trade union created by the management. The complainant also alleges violations of its right to bargain collectively.
2. 664. In particular, the complainant alleges that in early 2000, the OAO administration issued slanderous information to the trade union alleging that the bank in which the trade union’s main financial resources have been deposited was on the verge of insolvency and suggested that these resources be transferred to a steadier bank. It was later established that the director of the OAO was the chairman of the board of directors of that steadier bank. Thus, the OAO administration was put in control of the trade union’s financial assets.
3. 665. In November 2000, notwithstanding the collective agreement due to remain in force until March 2001, the port administration discontinued unilaterally to finance the cultural and sports activities among workers of the OAO, and ceased to pay bonuses to the trade union personnel as envisaged in the collective agreement. Furthermore, contrary to the collective agreement, according to which the chairman of the trade union committee is entitled to two days off every six months for exercising his trade union activities, the port administration has been persistently attempting to restrict this right.
4. 666. In December 2000, the general director of the OAO decided to found his own trade union of workers of the seaport of the Krasnodar territory. Accordingly, a group of initiators, presided over by the director of human resources, was set up from among the chiefs of the OAO divisions who, pursuant to instructions from the port management, launched a campaign aimed at the withdrawal of the port workers from the PRVT and their subsequent entry into the new trade union. The “educational” work was carried out by the use of blackmail, misinformation, intimidation and administrative pressure: some workers received bonuses in exchange for the submission of statements on withdrawal from the union, others had their pay delayed and were threatened with dismissal. As a result, 2,000 persons withdrew from the PRVT between December and January. In February 2001, the founding conference of the new trade union organization was held. The delegates to the conference were arbitrarily appointed by the managers of respective port divisions.
5. 667. Following these events, the Azov-Black Sea Interregional Organization of the PRVT addressed the Office of Transport Prosecutor and a commission of inquiry was established in May 2001. According to the findings of the commission, the attempt to liquidate the primary trade union of the PRVT and the establishment of a new trade union at the OAO were initiated by the OAO administration. The commission considered that these acts were tantamount to acts of interference in trade union activities and were contrary to the legislation in force and Conventions Nos. 87 and 98, ratified by the Russian Federation. Moreover, the commission found that the procedure for the establishment of a new trade union was not respected (for example, most of the appointees to the conference establishing the new trade union were representing the management and not workers). Following the commission report, the transport prosecutor requested the director of the OAO to take all the necessary measures in order to ensure that all the violations of the Law on Trade Unions were obviated.
6. 668. Furthermore, according to the documents provided by the complainant, a new collective agreement for 2002-04 was concluded between the port administration and the “yellow” trade union acting on behalf of all workers of the port without respecting the procedure provided for under section 37 of the Labour Code. According to the complainant, no unified representative body for engaging in collective bargaining was formed and no general meeting, to determine, through a secret ballot, the trade union authorized to conduct collective bargaining on behalf of all workers, was held (as prescribed by section 37 of the Labour Code if a unified representative body fails to be established) and the collective agreement was signed between the port administration and the president of the “yellow” trade union. The complainant supplies a copy of the legal opinion issued by the Office of the Public Prosecutor on that matter. According to this document, the procedure provided for in section 37 of the Labour Code was not respected. Thus, the complainant organization addressed the port administration with a proposal to annul the collective agreement and to form a unified representative body on the basis of the principle of proportional representation for the conclusion of a new collective agreement.

B. The Committee’s conclusions

1. 669. The Committee regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainant’s allegations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urgently requests the Government to be more cooperative in the future, and in particular, it would request the Government to solicit information from the employer’s organization concerned with the view to having at its disposal its view as well as those of the enterprise concerned on the questions at issue.
2. 670. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 671. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed replies concerning allegations made against them [see the First Report of the Committee, para. 31].
4. 672. The Committee notes that the complainant in this case alleges that the administration of the Open Stock Company (OAO) “Novorossiisk Commercial Sea Port” has violated the right of the primary trade union organization of the Azov-Black Sea Interregional Organization of the PRVT to organize its administration and activities by exercising pressure on workers to change their affiliation to another trade union created by the management. The complainant also alleges violations of its right to bargain collectively.
5. 673. The Committee notes the complainant’s allegation concerning the transfer of trade union financial assets to the bank administered by the director of the OAO. The Committee notes however that the transfer seems to have been made willingly even if it was made upon the suggestion of the OAO administration.
6. 674. The Committee further notes the complainant’s allegation concerning the violation of the collective agreement by the port administration, in particular, clauses concerning the financing of the cultural and sport activities among workers of the OAO and payment of bonuses to the trade union personnel. The complainant further states that the port administration has been attempting to restrict the right of the trade union chairman to two days off every six months for exercising his trade union activities, as provided for in the collective agreement. In this respect, the Committee recalls that agreements should be binding on the parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 818]. Mutual respect of the commitment undertaken in the collective agreement is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground. The Committee therefore requests the Government to take the necessary measures so as to ensure that this principle is respected.
7. 675. As regards the allegation concerning the creation of a “yellow” union and the campaign launched by the enterprise aimed at the withdrawal of the port workers from PRVT and their subsequent entry into the “yellow” union, the Committee notes the report of the commission of inquiry confirming these allegations. It further notes that the transport prosecutor has requested the director of the OAO to obviate all the violations of the Law on Trade Unions. The Committee further notes that according to the complainant a new collective agreement was concluded between the management of the OAO and the allegedly “yellow” trade union on behalf of all workers of the port in violation of the procedure provided for under section 37 of the Labour Code. The Committee notes that according to section 37, if there are two or more primary trade unions at the enterprise, a unified representative body for holding negotiations should be formed on the basis of the principles of proportional representation depending on the number of trade union members and if such a body fails to be established within five days, representation of workers’ interests is assured by the majority trade union or in the event of none of the trade unions uniting over half of the employees, a general meeting (conference) determines, through a secret ballot, the trade union which is further authorized to conduct collective bargaining. The complainant submits that none of these requirements were respected and the collective agreement was signed between the port administration and the president of the “yellow” trade union. The complainant attaches a copy of the legal opinion issued by the Office of the Public Prosecutor on this matter, according to which the procedure of conducting collective bargaining was not respected. The Committee notes that the complainant organization addressed the port administration with a proposal to annul the collective agreement and to form a unified representative body on the basis of the principle of proportional representation for the conclusion of a new collective agreement.
8. 676. In this respect, the Committee recalls that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities [see Digest, op. cit., para. 759]. Recalling the importance of the independence of the parties in collective bargaining, the Committee considers that negotiations should not be conducted on behalf of employees by bargaining representatives appointed by or under the domination of employers or their organizations [see Digest, op. cit., para. 771]. The Committee therefore requests the Government to initiate an independent inquiry into the allegations made in this respect and to keep it informed of the outcome. It also requests the Government and the complainant organization to keep the Committee informed of any developments concerning the establishment of a unified representative body on the basis of proportional representation for the conclusion of a new agreement.