Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 337, Junio 2005

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

1. 140. The Committee examined Case No. 2251 at its March 2004 meeting [see 333rd Report, approved by the Governing Body at its 289th Session, paras. 940-1001] and the effect given to its recommendations in Case No. 2216 at its June 2004 meeting [see 334th Report, approved by the Governing Body at its 290th Session, paras. 47-62]. The allegations in both cases concerned the Labour Code and the recommendations of the Committee in this respect can be summarized as follows.
2. 141. The Committee requested the Government to amend sections 31, 26, 45, 410, 412 and 413(3) of the Labour Code so as to bring it into conformity with Conventions Nos. 87 and 98. The Committee further requested the Government to amend its legislation so as to ensure that railroad employees, as well as those engaged in the public service, but not exercising the authority in the name of the state, enjoy the right to strike. The Committee also requested the Government to provide information on sections 29(1) and 413(1)(b) of the Labour Code, as well on a number of issues related to the exercise of the right to strike and the right to collective bargaining.
3. 142. As concerns the practical application of the right to collective bargaining, the Committee requested the Government to keep it informed of the outcome of the investigation on the alleged violations of the right to collective bargaining of the Ural Trade Union Centre (URALPROFCENTRE) by the administration of the Uralsk Electro-Chemical Enterprises (UECE) as well as of the inquiries into the allegations made by the Tyumen Regional Trade Union Centre (TRTUC) concerning the refusal to establish a unified representative body for collective bargaining purposes at the “Managing Company for Housing Communal Services UG”.
4. 143. In its communication of 11 June 2004, the complainant organization in Case No. 2216, the Seafarers Union of Russia (RPSM), alleged the continuing failure of the Government to implement the recommendation of the Committee. The RPSM submitted that it had made several proposals to amend the Labour Code so as to bring it in line with the recommendation of the Committee only to meet the Government’s disagreement.
5. 144. In its communication of 1 October 2004, the complainant organization in Case No. 2251, the Russian Labour Confederation (KTR), also alleged the continuing failure of the Government to implement the recommendations of the Committee. The KTR stated that, based on the Committee’s recommendations, it had drafted amendments to the Labour Code. However, according to the KTR, the Government rejected the submitted draft amendment law.
6. 145. In its communication of 1 March 2005, the Government stated that on 19 January 2005, the Ministry of Health and Social Development of the Russian Federation (Department of Labour Relations) held a conference with the RPSM and the regional trade union organization Murmansk Trawler Fleet. A decision was made at this conference to set up a joint working group of the Ministry and the RPSM to prepare proposals for the introduction of amendments to the Labour Code concerning protection of the interests of workers on seagoing craft and in aircraft. It was also decided that amendments to the Labour Code should be formulated and then put forward to working groups of the Labour and Social Policy Committee of the State Parliament of the Russian Federation for consideration as potential subjects for legislative initiatives during the spring 2005 session.
7. 146. The Government further made the following comments related to the recommendations for amendments to a number of provisions of national legislation. As concerns the question of taking measures to amend section 45 of the Labour Code and to guarantee the opportunity to conduct collective bargaining at occupational level both in legislation and in practice, the Government indicated that the position of the office of the Attorney-General of the Russian Federation was that this section of the Labour Code did not prevent trade unions from taking part in collective bargaining and contained no provisions inhibiting the rights of trade unions. To the contrary, it actually reinforced the legal position and competence of trade unions that are established on a territorial or sectoral basis. It defined the notion of an agreement, a legal document, establishing general principles for the regulation of social, labour and economic relations, concluded by authorized representatives of workers and employers at federal, regional, sectoral (or intersectoral) and territorial levels.
8. 147. As concerns section 31 of the Labour Code, the Government stated that it could not see the need to amend this section. According to the Government, this section allowed workers, if there was no trade union at an establishment or if a trade union organization did exist but represented fewer than half of the workforce, to delegate the representation of their interests to the trade union organization or to another representative. The existence of another representative could not prevent a trade union from fulfilling its authorized role. The provision granting workers the right to elect a representative was also reinforced by section 29 of the Labour Code.
9. 148. As concerns the question of representation of workers during collective bargaining at the enterprise level by trade unions other than primary trade unions, the Government indicated that the issues relating to the participation of trade unions in collective bargaining and concluding collective agreements were governed not only by the Labour Code but also by other federal Acts – in particular Federal Act No. 10 and Federal Act No. 175-FZ of 23 November 1995 “On the procedure for the settlement of collective labour disputes”. According to section 29.2 of the Labour Code, the interests of workers at an establishment with regard to collective bargaining, the conclusion and amendment of collective agreements are represented by a primary trade union organization or by another representative elected by the workforce. Therefore, the Labour Code provided for the possibility to participate in the procedure of conclusion and amendment of agreements and the settlement of collective labour disputes concerning the conclusion and amendment of agreements not only to primary union organizations, but also to other representatives elected by the workers at a particular establishment. Workers may be represented by a trade union or trade union association bodies that were authorized to act as representatives in accordance with their constitutions or by independent public organizations set up at meetings (conferences) of the workers at an establishment, branch or agency and authorized by them (section 2.3 of Federal Act No. 175). Accordingly, higher-level organizations or their associations may also represent the interests of workers at particular establishments (enterprises) in collective bargaining if they have been elected to do so. Section 13 of Federal Act No. 10 reinforces the right of trade unions, trade union associations, primary union organizations and bodies created by them to carry out collective bargaining and conclude accords and collective agreements. Account was taken of the number of members represented by a trade union organization or association to determine its right to conduct collective bargaining and conclude agreements in the name of the workers at federal, sectoral or territorial level. Therefore, according to the Government, no amendments need to be made to current legislation in this area.
10. 149. With regard to the amendment of section 410 of the Labour Code concerning setting a lower level for the quorum required for a vote on strike action, the Government submitted that currently, a workers’ meeting was considered valid if no less than two-thirds of the total workforce (or conference delegates) was present. Consequently, a qualified majority was necessary for a decision to be considered lawful. It was the Government’s position that the standard under consideration did not contradict international labour standards. In particular, States parties to the International Covenant on Economic, Social and Cultural Rights were obliged to ensure the right to strike, provided that it was exercised in conformity with their laws (Article 8.1(d)).
11. 150. The Government further submitted that the complainants’ position with regard to the restriction on the right to strike imposed on certain categories of workers (section 413 of the Labour Code) seemed ill-founded. In accordance with a ruling of the Constitutional Court of the Russian Federation dated 17 May 1995, the regulation of the right to strike must achieve the necessary balance between the protection of occupational interests and consideration of the public interest, which can be harmed by strike action and which the employer was obliged to guarantee. The possibility of restricting the right to strike for certain categories of worker in consideration of the nature of their work and the possible consequences of a work stoppage by them directly flowed from the provisions of article 17.3 of the Constitution of the Russian Federation, which stipulated that the rights and freedoms of others must not be violated in the exercise of human and civil rights and freedoms, and from article 55.3 of the Constitution of the Russian Federation, in accordance with which, human and civil rights and freedoms may be restricted by federal legislation only in so far as this was necessary to protect fundamental aspects of the Constitutional order, the moral well-being, health, rights or lawful interests of other persons, the defence of the country or the security of the State. In this way, the boundaries for any potential restriction were set out for the legislator by the Constitution. Neither, according to the Government, did the restriction of the right to strike contradict universally accepted principles or standards of labour legislation. The provisions of the International Covenant on Economic, Social and Cultural Rights state that prohibition of a strike action is permissible in relation to persons in the armed forces, the police or the administration of the State (Article 8.2). Restrictions can be made for other persons if necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others (Article 8.1(c)). Nevertheless, while instruments of international human rights law leave it to national legislation to regulate the right to strike, this national legislation must not impose restrictions that go beyond the boundaries set out by these international instruments.
12. 151. In its communication of 25 May 2005, the Government stated that a working group, created by the Ministry of Health and Social Development and the RPSM, submitted to the Commission on Regulations of Social and Labour Relations its proposals to amend sections 29(3), 31(1), 37(3-6), 45(7), 372(1), 399(2) and 410(1) of the Labour Code. The Government indicated that a working group of the said Commission rejected the draft amendments. The Government further indicated that the Federation of Independent Trade Unions of Russia (FNPR) was also opposed to the draft amendments. Furthermore, a tripartite working group of the Labour and Social Policy Committee of the State Parliament of the Russian Federation had also recommended to reject the draft amendments. The Government stated that the specifics of these decisions were attached to its communication. However, this attachment was not received.
13. 152. The Committee notes the Government’s reply concerning various provisions of the Labour Code. As regards section 45, the Committee must once again emphasize 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, including the amendment of sections 26 and 45 of the Labour Code, so as to ensure both in law and in practice that collective bargaining may be conducted at occupational or professional level. While taking into account the Government’s explanation concerning section 31 of the Labour Code, 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 its legislation so as to ensure the application of the abovementioned principle and to keep it informed in this respect.
14. 153. As concerns the quorum required for a strike ballot pursuant to section 410 of the Labour Code, while noting the Government’s reference to the already existing quorum for a trade union conference, the Committee recalls that the observance of a quorum of two-thirds of the members may be difficult to reach, in particular where trade unions have large numbers of members covering a large area [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 511]. Therefore, the Committee once again requests the Government to amend section 410 of the Labour Code so as to lower the quorum required for a strike ballot. The Committee notes the information provided by the Government in respect of the restriction on the right to strike imposed on certain categories of workers. The Committee recalls that, as concerns the restrictions imposed on the right to strike, it had previously requested the Government: (1) to indicate the enterprises and services it qualified as “directly servicing highly hazardous kinds of production or equipment” where the right to strike was prohibited (section 413(1)(b) of the Labour Code); and (2) to amend its legislation so as to ensure that railroad employees, as well as those engaged in the public service, but not exercising the authority in the name of the State, enjoyed the right to strike. Noting that the Government has not specified the enterprises and services referred to in section 413(b) of the Code, the Committee would reiterate its request in this regard. The Committee further refers to Case No. 2244 where it noted new Federal Act No. 17-FZ of 10 January 2003 on rail transport and requested the Government to amend section 26 of that Act which provided that a strike by the workers of railways in services related to the traffic, shunting, service to passengers, freight was illegal and prohibited. The Committee once again recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the state; (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); and (3) in the event of an acute national emergency [see Digest, op. cit., paras. 526 and 527]. The Committee requests the Government to take the necessary measures so as to bring its legislation into conformity with the above principles.
15. 154. Noting that the details on the decisions of various working groups as well as of the FNPR to reject the draft amendments to the Labour Code were not submitted by the Government, the Committee requests the Government to transmit this information to the Committee of Experts on the Application of Conventions and Recommendations to which it refers the legislative aspects of these cases in respect of the application of Conventions Nos. 87 and 98, ratified by the Russian Federation.
16. 155. Noting that the Government’s reply was limited to the legislative aspects of the cases, the Committee further requests the Government to provide information on the following recommendations:
17. – The Committee requests the Government to keep it informed of the outcome of the investigation on the alleged violations of trade union rights of the URALPROFCENTRE by the administration of the UECE.
18. – The Committee requests the Government to initiate the relevant inquiries into the allegations made by the TRTUC concerning the refusal to establish a unified representative body for collective bargaining purposes at the “Managing Company for Housing Communal Services UG”.
19. – In the light of the complainant’s allegation to the effect that in practice, the strike is often postponed or declared illegal, the Committee requests the Government to provide relevant information, including statistical information, on how the right to strike is exercised in practice.