Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 340, Marzo 2006

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

1. 181. The Committee last examined this case, which concerns alleged acts of anti-union discrimination by the administration of the Commercial Seaport of Kaliningrad (MTPK), at its May-June 2004 meeting. On that occasion, the Committee noted the Government’s statement to the effect that the Baltic District Court, in its decision of 24 May 2002, ordered the reinstatement of the illegally dismissed dockworkers and that this decision was implemented and the dockworkers were offered jobs at the Transport and Freight Company Ltd. (TPK). Despite the numerous job offers issued by the TPK management, the dockworkers did not return to work [see 334th Report, paras. 44-46].
2. 182. In its communication of 19 March 2005, the complainant organization, the Russian Labour Confederation (KTR) alleged that discrimination against members of the Russian Trade Union of Dockworkers (RPD) continued at the MTPK. It submitted that it was not until 16 March 2004, that the management of the MTPK ordered the reinstatement of dockworkers – members of the RPD under the conditions laid down in the decision of 24 May 2002 of the Baltic Regional Court and as interpreted by the Baltic Regional Court in its ruling of 15 March 2004. However, even after the issuance of orders to reinstate the RPD members, the dockworkers were allowed to return to work only on 12 May 2004. Moreover, until 12 May 2004, the RPD representative, Mr. Mikhail Chesalin, was not allowed to access the port premises. The KTR submitted that the employer once again separated the reinstated dockworkers from all other dockworkers and formed two brigades consisting solely of the RPD members. Once again, their access to work was restricted and the work of loading and unloading goods had not been offered to them. The KTR alleged that the employer used the RPD members for auxiliary work, paid at a considerably lower rate than cargo handling. As a result of the restricted access to work, monthly wages of the RPD members were equivalent to half of that paid to dockworkers/machine operators, who were not members of the RPD. In June-August 2004, five of the ten RPD members were once again dismissed from the MTPK, this time, in connection with their state of health, allegedly incompatible with their duties. According to the complainant, of these five dismissals, only one was justified. The employer’s continued policy of discrimination against the RPD, and resulting low wages, forced 12 dockworkers to leave. The KTR finally alleged a continual refusal of the employer to reform the trade union brigades and to grant the RPD’s request for the dockworkers’ training.
3. 183. In its communication dated 15 September 2005, the Government provided the following information with regard to the above communication submitted by the complainant. It confirms that on 16 March 2004, in compliance with the ruling of the Baltic District Court of Kaliningrad dated 15 March 2004, clarifying the Court ruling of 24 May 2002, the port management had issued orders to reinstate the 23 port machine operators – members of the RPD to their posts at the MTPK. However, not agreeing with the terms and conditions of the contracts of employment offered by the port management, the workers (Messrs. A.N. Kasyanov, N.N. Grushevoy, A.I. Pushkarev, V.P. Kolyadin, A.F. Verkhoturtsev, A.E. Milinets, O.A. Tolkachev, V.M. Morozov, A.K. Lemashov, I.Y. Zverev, N.G. Egorov, I.N. Vdovchenko and Y.A. Bychkov) refused to sign them.
4. 184. In the period between 25 March and 11 June 2004, the head of human resources at the port sent written instructions to the head of the Port Entrance Security Service to grant access to the port to the reinstated port machine operators on one-day passes between 9 a.m. and 5 p.m. As followed from the official statements drawn up by a Court executor, certain workers (Messrs. A.F. Verkhoturtsev, V.M. Sinyakov, I.Y. Zverev, I.I. Vdovchenko and A. P. Kasyanov) had not reported for work on 21 April 2004; Messrs. Y.A. Bychkov, A.V. Solovev, V.M. Sinyakov, A.I. Kiselev, N.N. Grushevoy and A.I. Pushkarev had also failed to report for work on 7 May 2004; Messrs. N.G. Egorov, A.P. Kasyanov, A.K. Lemashov, O.A. Tolkachev, A.E. Milinets and I.Y. Zverev had reported to the port entrance on 12 May 2004, but after being informed of the work schedule for May 2004 and the team they were required to join, refused to work.
5. 185. As concerns the denial of access to the port premises to 14 reinstated port machine operators, the Government explained that the workers refused to work claiming that they needed qualified legal assistance to legalize their reinstatement. They requested to be allowed onto the premises together with Mr. Chesalin, their representative. Following the denial of access to Mr. Chesalin to the port premises, the workers refused to go to the port Human Resources Department. On 21 May 2004, the Court executor drew up resolutions recognizing the termination of employment of all 23 of the port machine operators who had been previously reinstated.
6. 186. The Government further stated that the Baltic District Court of Kaliningrad in its ruling of 22 February 2005 established a failure on the part of the employer to implement the Court ruling dated 24 May 2002 ordering reinstatement of the 23 machine operators during the period 3 April 2003 to 12 May 2004. As a result, the employer was imposed a fine.
7. 187. In August 2005, the state labour inspectorate of Kaliningrad district carried out an inspection into the matters raised in this case. The inspection documents showed that the reinstated machine operators Messrs. N.E. Yakovenko, V.F. Grabchuk, Yu.E. Malinovski, A.E. Milinets, I.N. Vdovchenko, A.V. Lukshis, A.V. Solovev and P.I. Mironchuk had not reported for work because they disagreed with the ruling of the Baltic District Court of Kaliningrad of 24 May 2002 and with the ruling of the Baltic District Court of 15 March 2004. On 21 May 2004, they informed the employer of their disagreement in writing. The reinstated machine operator Mr. A.N. Kasyanov was relieved of his duties on 6 July 2004 at his own request, in accordance with section 77(3) of the Labour Code. The reinstated worker Mr. A.I. Kiselev did not report for work until 1 March 2005. Therefore, the refusal of the port authorities to conclude a contract of employment with him was lawful.
8. 188. As regards the difference in wages, the Court rulings stated that the employer was required to reinstate workers on the same terms and conditions as they enjoyed at the time of their dismissal in October 2002. The Court ruling of 2002 specified the terms and conditions on which these workers were supposed to be hired, including wages and shifts. According to the Government, the order by the port authorities dated 16 March 2004 was thus entirely in accordance with the Court rulings on reinstatement.
9. 189. In accordance with the labour legislation and on the basis of the findings of the Commission of Clinical Experts of the North-Western District Medical Centre “Kaliningrad Hospital” of 25 May, 13 and 14 July 2004, the machine operators Messrs. O.A. Tolkachev, A.F. Verkhoturtsev and N.N. Grushevoy were dismissed under the terms of section 77(8) of the Labour Code (concerning refusal by a worker to accept transfer to other duties on health grounds as established by a qualified medical practitioner). In accordance with section 72(2) of the Labour Code, they were offered other suitable positions in the port but refused all of them and were consequently dismissed. The workers lodged an unsuccessful appeal against the Commission’s findings and their dismissals before the Baltic District Court in Kaliningrad. The Government explained that all workers were required to undergo annual medical examinations, regardless of their trade union membership. The Court found no evidence to support the plaintiffs’ allegations that the dismissals were motivated by their RPD membership, nor was there any evidence found that the dismissals and referrals to a medical practitioner were discriminatory.
10. 190. Mr. A.E. Milinets was dismissed on 7 June 2004 in accordance with section 77(8) of the Labour Code. Mr. A.I. Pushkarev was dismissed on 8 June 2004 in accordance with section 81(3)(a) of the Labour Code after the Commission concluded on 23 April 2004 that he was a Class 2 invalid. These workers did not avail themselves of the opportunity to defend their rights in court or to appeal to the state labour inspectorate.
11. 191. As regards the composition of work teams, it was found that, at the time of the workers’ reinstatement, all work teams at the port were already formed. The reinstated workers were therefore integrated into new teams.
12. 192. Finally, the Government stated that, in accordance with section 377(1) of the Labour Code, within the territory of the port, the management had placed heated and equipped premises at the disposal of trade unions, even though the labour legislation does not require the employer to provide such premises for all trade union organizations.
13. 193. In the light of the above, the Government considered that there was no evidence of any discrimination against members of the RPD at the MTPK.
14. 194. The Committee notes the complainant’s allegations and the information provided by the Government. The Committee notes that, according to the Government, the workers reinstated by the port management order of 16 March 2004 refused to sign the contracts of employment offered to them because they disagreed with the terms and conditions. However, it appears from the information provided by the Government that the terms and conditions of reemployment, at least as wages are concerned, were the same as provided in the Court’s ruling of 2002. At the same time, on 22 February 2005, a court found the employer guilty of failing to comply with the Court order to reinstate the dismissed workers during the period from 3 April 2003 to 12 May 2004. In the light of these circumstances, the Committee notes that, while having won their court cases against unjustifiable dismissal both at the initial stage and on appeal, the members of the RPD were finally offered contracts of employment on the basis of a wage rate corresponding to that of more than two years before and one which, according to the complainant, was equivalent to half of what other dockworkers/machine operators were being paid. The Committee deeply regrets that, despite the numerous court judgements and fines against the employer, the MTPK did not give effect to the reinstatement orders and that, despite the judgement of February 2005, the Government considers that there is no evidence of anti-union discrimination against the members of the RPD. Regretting that almost four years after the complaint was filed, the issues raised in this case have not been resolved, the Committee urges the Government to take all the necessary measures so as to ensure that the port management and the dismissed members of the RPD find a mutually acceptable solution. The Committee requests the Government to keep it informed in this respect.