Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 334, Junio 2004

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

1. 47. The Committee examined this case at its November 2003 meeting [see 332nd Report, approved by the Governing Body at its 288th Session, paras. 891-914] and on that occasion, it formulated the following recommendations:
   • - As concerns the allegation of no recognition of occupational unions by the Labour Code, especially as concerns their collective bargaining rights, the Committee requests the Government to take all the necessary measures, including the amendment of section 45, so as to allow the possibility of collective bargaining at occupational or professional level both in law and in practice.
   • - The Committee requests the Government to amend section 31 of the Labour Code so as to ensure that it is only where there is no trade union at the workplace that workers can elect other representatives to represent their interests.
   • - As concerns the allegation of violation of the right of trade unions, other than primary trade unions, trade union federations and confederations to conclude collective agreements at the enterprise level, the Committee requests the Government to amend its legislation so as to ensure that higher union structures, as well as federations and confederations have access to the collective bargaining process and enjoy the right to conclude collective agreements.
   • - As concerns the alleged requirement to obtain an approval of the claims a trade union wishes to make to the employer by the meeting (conference) of employees, the Committee requests the Government to provide additional information as to how section 399 works in practice.
   • - As concerns the allegation concerning restriction of the right to strike, the Committee requests the Government to amend section 410 of the Labour Code so as to lower the quorum required for a strike ballot.
2. 48. In its communication of 23 January 2004, the Seafarers’ Union of Russia (RPSM) once again alleges that section 37 of the Labour Code, which, for the purpose of collective bargaining, gives preference to unions with a larger membership, is incompatible with Conventions Nos. 87, 98 and 154. More particularly, the RPSM alleges that, as concerns the collective agreements at the national, industrial and territorial level, section 37(6) is frequently used to exclude minority unions (trade union associations) from participation in collective bargaining. The majority trade unions refuse to agree on the composition of a unified representative body. Hence, although the Code grants the right to participate in collective bargaining to minority unions, this right is not realizable due to the absence of necessary mechanisms to ensure its implementation (the complainant agrees that at the enterprise level, the conflict between minority unions and trade unions with a larger membership is partially resolved by the provision contained in section 37(5)). The RPSM provides two examples where the requests to participate in collective bargaining with a view to conclude collective agreements at the industrial level made by all-Russia trade unions, which operate outside of the Federation of Independent Trade Unions of Russia (FNPR) structure, were ignored by the representatives of the latter organization.
3. 49. The complainant organization further indicates that contrary to the Government’s assertion that the complainant organization has not appealed to national remedies available to it in order to resolve the conflicts arising from the practical application of section 37, it has complained to the Deputy Minister of Labour and Social Development of the Russian Federation, who is the Head State Inspector of Labour, and the Ministry of Labour and Social Development of the Russian Federation. In its communication, the RPSM transmits the relevant documents.
4. 50. In its communication of 12 February 2004, the Government states that, although the conclusion of occupational agreements is not envisaged by section 45 of the Labour Code, section 37(6) of the Code provides for the creation of a single representative body where trade unions are represented according to the principle of proportionality. Thus, the law provides for participation in the collective bargaining of all trade unions, including those consisting of workers of specific occupations.
5. 51. Concerning the recommendation to amend section 31 of the Russian Federation Labour Code, the Government indicates that it cannot agree with the Committee’s recommendation to amend this section as it considers that such an amendment would violate the rights of non-unionized workers. The Government points out that, under the Act on trade unions, their rights and guarantees of their activities, the presence of other representative bodies may not be used to undermine the activity of trade unions. Moreover, under section 16 of the Act, trade unions have the right to propose candidates for the election of workers’ representatives.
6. 52. With respect to the right of higher trade union organizations to conclude collective agreements, the Government indicates that the interests of workers in collective bargaining are represented by the primary trade union or other representatives elected by the workers. At federal, regional, local and district level, for the purposes of concluding agreements relating to social and economic policies, workers are represented by trade unions, their territorial organizations and trade union associations (regional and all-Russia). The Government therefore considers that the alleged violation of the right of higher trade union organizations (federations or confederations) to conclude collective agreements at the enterprise level is unfounded, since this right of the workers is exercised either directly or through the appropriate representative bodies, as determined by the legislation.
7. 53. As concerns the application in practice of section 399 of the Labour Code, the Government states that the following industrial disputes were registered by the north-west territorial branch of the Russian Ministry of Labour in 2003: the free primary trade union of TETs submitted its demands to the administration of the State Shoe Factory; the trade union of the Chemical-Pharmaceutical Company OAO "ICN October" registered an industrial dispute with the management of that company; the trade union committee of the primary trade union of the "Prikladnaya Himiya" enterprise submitted its demands to the management of the company; and the workers’ group of the International Information Centre for the preparation and celebration of the tercentenary of Saint Petersburg registered an industrial dispute that arose between the workers’ group and the management of the Centre. All these demands were submitted by workers’ groups. The Government indicates that the registration of disputes with the Government’s office for the settlement of industrial disputes and the participation of its staff in resolving disputes yielded positive results. No difficulties were found concerning compliance with the provision that a quorum of two-thirds of the workers of the organization is required to submit demands and to declare a strike.
8. 54. Concerning the request to amend section 410 of the Russian Federation Labour Code, the Government indicates that it considers the requirement of this section to be in conformity with the international legal standards. This requirement to take decisions on declaring a strike by a majority vote of workers of the organization has existed since the adoption, in 1995, of the law on procedure for resolution of collective labour disputes. The Government further indicates that, since in practice there are no obstacles to strike action and no trade union has been dissolved for conducting a strike, it considers that there is no need to review the current legislation in this respect.
9. 55. Finally, the Government states that contrary to the complainant’s allegation that only the representatives of the FNPR were involved in the discussion on the new Labour Code, the President of the Russian Trade Union Congress and the President of the Council of the All-Russia Labour Congress were members of the working groups responsible for drafting proposals. To support its statement, the Government forwards the copy of the Decree of the State Duma of 15 March 2001, N1250-III GD.
10. 56. The Committee notes the information provided by the complainant and the Government. The Committee notes the complainant’s concerns over the preference given by the Labour Code to majority unions in the collective bargaining process at all levels (enterprise, as well as territorial, industrial and national). The Committee recalls that in its previous examination of this case, as well as in Case No. 2251, it dealt with this allegation [see 332nd Report, para. 907, and 333rd Report, para. 979, approved by the Governing Body at its 289th Session]. It considered on these occasions that the approach favouring the most representative trade union for collective bargaining purposes at the enterprise or a higher level is not incompatible with Convention No. 98. The Committee notes from the complainant’s communication that the problem at issue involves a conflict between different trade unions. It points out that inter-union rivalry is outside the scope of Convention No. 98.
11. 57. While taking into account the Government’s explanation concerning section 45 of the Labour Code, the Committee notes the Government’s indication that conclusion of occupational agreements is not envisaged by the legislation. The Committee recalls that in this case, as well as in Case No. 2251 [see 333rd Report, para. 978], the complainant referred to the difficulties encountered by trade unions defending the interests of particular professions. The Committee points out that legislation should not constitute an obstacle to collective bargaining at the occupational or professional level. It therefore once again requests the Government to take all the necessary measures so as to ensure that a possibility to conduct collective bargaining at occupational or professional level exists both in law and in practice.
12. 58. Concerning its request to amend section 31 of the Labour Code, the Committee notes the Government’s disagreement. The Committee once again refers to the Collective Agreements Recommendation, 1951 (No. 91), which stresses the role of trade union organizations as one of the parties in collective bargaining and refers to representatives of non-unionized workers only when no trade union organization exists at the enterprise. A provision which permits collective bargaining with other workers’ representatives, bypassing trade union existing at the enterprise does not promote collective bargaining. The Committee therefore once again requests the Government to amend section 31 so as to ensure the application of the abovementioned principle.
13. 59. As concerns the right of trade unions, other than primary trade unions, to conclude collective agreements, the Committee recalls that it also had to deal with this question in Case No. 2251 [see 333rd Report, paras. 973-975]. The Committee recalls that the complainant’s concern in the present case was that trade unions, as well as federations and confederations of trade unions, could not represent workers during collective bargaining at the enterprise level. In Case No. 2251, the complainant alleged that the rights to collective bargaining of the so-called "stand-alone" trade unions (trade unions, which are not organizational structures of a higher trade union body) were restricted. The Committee notes the information provided by the Government in this respect. It finds, however, that it is still rather unclear whether trade unions, other than primary trade unions, can represent workers during collective bargaining at the enterprise level. The Committee requests the Government to take steps so that the law and practice permit the promotion of collective bargaining with the organizations freely chosen by the workers. The Committee therefore requests the Government to clarify whether the abovementioned structures of trade union organizations can represent workers’ interests during collective bargaining at the enterprise level.
14. 60. The Committee notes that the information provided by the Government regarding practical application of section 399 of the Labour Code does not clarify whether trade unions need to refer to a meeting or conference of employees every time there is a claim to be made to an employer, as it is in the case of non-union representatives. The Committee once again requests the Government to provide information in this respect.
15. 61. As concerns the quorum required for a strike ballot pursuant to section 410 of the Labour Code, the Committee notes the Government’s disagreement with the Committee’s recommendation to lower it. The Committee points out that, since 1996, the Committee of Experts on the Application of Conventions and Recommendations has also been requesting the Government to amend its legislation so as to lower the quorum required for a strike ballot, which it considers too high. Therefore, the Committee once again requests the Government to amend its legislation so as to lower the quorum required for a strike ballot.
16. 62. The Committee once again draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.