Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 357, Junio 2010

1. 629. The complaint is contained in communications from the Georgian Trade Unions Confederation (GTUC) dated 14 November and 24 December 2008, and 7 May 2009. Education International (EI) associated itself with the complaint by a communication dated 21 November 2008.
2. 630. The Government sent its observations in a communication dated 20 November 2009.
3. 631. Georgia 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. 632. By its communications dated 14 November and 24 December 2008, and 7 May 2009, the GTUC submits a complaint against the Government of Georgia on behalf of its affiliate, the Educators & Scientists Free Trade Union of Georgia (ESFTUG). The complainant explains that the ESFTUG was established on 19 November 2005 and represents 100,000 employees in the education sector.
2. 633. The GTUC alleges that, on 21 January 2008, a new teachers’ organization, the Professional Education Syndicate (PES) was registered by the Tbilisi Tax Inspection. According to the complainant, the PES was not established as a trade union, but rather as a non-governmental and non-commercial legal entity in the field of education. According to the GTUC, from the moment of its establishment, the PES has been illegally trying to force members of the ESFTUG to join the PES by spreading incorrect information and, to that effect, is using administrative resources. Furthermore, school directors use their authority and influence in favour of the PES and interfere in the ESFTUG’s activities. The complainant refers in particular to the actions of the directors of Tbilisi public schools Nos 10 and 136 and alleges that the directors of these schools transfer money to the account of the PES. According to the complainant, the PES is also supported by directors and heads of educational resource centres of the Ministry of Education and Science.
3. 634. The complainant alleges that, on 5 February 2008, school directors and chairs of public school boards of the district of Bolnisi were invited to a meeting to be introduced to the representatives of the new organization. At the meeting, school directors were invited to encourage their employees to renounce the ESFTUG affiliation and join the PES, which offered a 50 per cent rebate on teacher certification training fees. Such trainings, while not compulsory, are strongly recommended by the Ministry of Education and Science. One of such trainings was organized by the Education Institute, which specifically required PES membership.
4. 635. The complainant further alleges that on 8 February 2008, the PES organized a meeting with the ESFTUG members in Tbilisi Public School No. 10. Representatives of the ESFTUG – its Vice-President, the head of the Organizational Department and the head of the Legal Department – wished to attend the meeting, but the director of the school denied access to the school territory. The ESFTUG lodged an administrative complaint to the General Inspectorate of the Ministry of Education and Science. However, this complaint was dismissed.
5. 636. The GTUC indicates that, on 15 February 2008, the web site of the Ministry of Education and Science of the Autonomous Republic of Adjara announced that the PES would offer free training for its members. The Ministry web site included a downloadable PES membership application form. Moreover, the Deputy Minister of Education and Science of the Autonomous Republic of Adjara, upon the instruction of the Minister, sent letters to all educational resource centres requesting that they introduce the new union to all teachers.
6. 637. The complainant also alleges instances of violation of section 25(3) of the Law on Trade Union, according to which, an employer shall deduct trade union membership fees from his or her employees’ salary and transfer them to the trade union upon a written request by an employee. The GTUC indicates that article 4.13 of the sectoral agreement signed by the Ministry of Education and Science and the ESFTUG provides for an obligation imposed upon the administration of educational institutions to transfer deducted membership fees to the ESFTUG account. However, when, in April 2008, employees of the Senaki nursery made written statements that they wished to rejoin the ESFTUG and asked the head of the Senaki Educational resource centre to transfer their membership dues to the ESFTUG, their request was ignored and their membership fees kept being transferred to the PES account. On 12 July 2008, nine teachers of a Nakolakevi public school requested the school director to transfer their membership dues to the ESFTUG account. However, July and August dues were transferred to the PES.
7. 638. Furthermore, according to the complainant, the ESFTUG primary trade union of Tbilisi Public School No. 85 was dissolved and its members were forced to join the PES. The complainant also alleges that because of incorrect information spread by the PES, ESFTUG members at the Zugdidi Technical College terminated their union membership. The GTUC also alleges that school directors force members of the ESFTUG to become members of the PES by threatening teachers with dismissals and terminating their employment contracts if they refuse. In particular, the complainant alleges that in Achabeti and Kekhvi villages, two ESFTUG trade union members were forced by the school directors to leave their union. Moreover, the director of Public School No. 1 of Dedoflisckaro district terminated the employment contracts of the following eleven members of the ESFTUG pursuant to section 37(d) of the Labour Code: Ms Makvala Madzgharashvili, head of ESFTUG regional trade union of Dedoflisckaro district, Ms Eter Davitashvili, Ms Natela Popiashvili, Mr Vasil Paatashvili, Ms Manana Zurashvili, Ms Maia Pockhverashvili, Ms Tamila Javashvili, Ms Tamar Aladashvili, Ms Mzia Ivanidze, Ms Marina Natroshvili and Ms Matina Khichenko. All these persons refused to follow the director’s request to join the PES.
8. 639. On 16 April 2008, the ESFTUG sent an official letter to the Office of the Public Prosecutor denouncing interference in its activities and referring to a number of illegal financial operations by the PES. According to the complaint, the Office of Public Prosecutor never replied.
9. 640. The complainant also alleges that the PES has tried to discredit the ESFTUG through mass media. In particular, according to the GTUC, in an interview published in a daily newspaper, Alia, on 19 July 2008, a founder of the PES confirmed that the goal of the PES is to “cut off” the members of the ESFTUG. Reference to allegedly “unlawful” activities of the ESFTUG was also made in the article that appeared in the 17 March 2009 issue of The Resonance newspaper. Furthermore, on 18 March 2009, the Georgian Public Broadcasting also reported on a conflict between the School Directors’ Association and the ESFTUG. The ESFTUG representatives were not invited to participate in the TV programme along with the Executive Director of the School Directors’ Association, the Director of the Centre of National Plans of Teaching and Evaluation of the Ministry of Education and Science and the director of Tbilisi Public School No. 24.
10. 641. Furthermore, the complainant indicates that on 10 March 2009, a meeting of almost all school directors across the country was held. The PES President was present at that meeting. The meeting called for a protest action against the ESFTUG and, for that purpose, school directors were ordered to bring teachers together to act against the ESFTUG President. On 17 March 2009, the protest action was organized by the Executive Director of the School Directors’ Association and the PES President in front of the ESFTUG office. On 26 March 2009, another meeting of school directors was held and another call was made to persuade teachers to leave the ESFTUG. The meeting was attended by the chairperson of the public schools’ accreditation department of the Ministry of Education and Science, the Director of the Centre of National Plans of Teaching and Evaluation of the Ministry of Education and Science and an associate professor of Ilia Chavchacadze State University. All above mentioned persons stated that directors of public schools were not obliged to transfer membership dues to the ESFTUG account. Based on this disinformation, directors of Tbilisi Public Schools Nos 115, 127 and 160 stopped transferring membership dues to the ESFTUG account.
11. 642. The complainant concludes by stressing that the Government favours the PES and ignores and disadvantages the ESFTUG. Despite several attempts to dialogue with the Ministry of Education and Science, and despite the Court of Appeals’ decision of 27 February 2008 requiring the Ministry to commit to social dialogue, the Ministry did not initiate a real discussion on the negotiation of a sectoral agreement with the ESFTUG. The GTUC considers that all of the abovementioned facts prove that the Government interferes in the ESFTUG activities.

B. The Government’s reply

1. 643. In its communication dated 20 November 2009, the Government explains that the PES is a professional union of people employed in the education sector established pursuant to the Georgian Civil Code. According to the Government, none of the founders of the PES are representatives of a training centre or high officials of the Ministry of Education and Science. The Government indicates that the director of Tbilisi Public School No. 122 was one of the PES founders and refers to his constitutional right to join any kind of union or association.
2. 644. The Government points out that national legislation does not restrict the existence of membership-based non-governmental organizations. The PES concluded contracts with teachers and schools and received membership fees pursuant to these agreements.
3. 645. With regard to the Senaki nursery school, the Government indicates that this case was investigated by the Office of the Public Prosecutor upon request of the ESFTUG, but none of its accusations could be proven. All persons who wished to join the ESFTUG actually did so.
4. 646. With regard to the GTUC statement that the PES used administrative resources to force employees to join the PES, the Government states that there is no evidence to prove that fact. The PES organized several meetings in the regions of Georgia (including Bolsini) to present its programme, goals and activities to people.
5. 647. With regard to the GTUC claim that the Ministry of Education of the Autonomous Republic of Adjara assisted the PES when it placed the information about the PES on its official web site, the Government indicates the ESFTUG announcements were also placed on various official web sites.
6. 648. The Government also denies that the ESFTUG was discredited by one of the founders of the PES when he gave an interview to the daily newspaper Alia and states that the PES is ready to provide a translation of the article to prove the groundlessness of this accusation.
7. 649. The Government explains that the PES organizes a number of trainings for teachers aimed at preparing them for the certification process. All these training programmes are designed in accordance with teachers’ demands as one of the main components of the ongoing secondary education reform in Georgia. These training programmes are not compulsory and each person can decide whether to participate or not.
8. 650. The Government states that the existence of professional unions in the education sector makes this field more competitive. Moreover, as employees have the right to be members of several unions at the same time, it therefore cannot be claimed that the Government discriminates the ESFTUG or interferes in its activities.

C. The Committee’s conclusions

1. 651. The Committee notes that, in the present case, the complainant trade union – the Georgian Trade Unions Confederation (GTUC) – alleges interference in the activities of the Educators & Scientists Free Trade Union of Georgia (ESFTUG), its member organization, as well as dismissals of trade union members.
2. 652. The Committee notes that the complainant further alleges that discrediting information had been spread about the ESFTUG in educational establishments and, through mass media, to the public in general, resulting in membership loss. Furthermore, the GTUC alleges that the relevant authorities in the education sector, including directors of educational establishments, promote membership in and the activities of the PES at the expense of the ESFTUG. The Committee notes in this respect that according to the complainant, the PES was not established as a trade union, but rather as a nongovernmental and non-commercial legal entity in the field of education. It is involved in providing certification training to teachers recommended by the Ministry of Education and Science in the framework of the ongoing education reform. The Committee notes the Government’s explanation that the PES is a professional union of people employed in the education sector established pursuant to the Georgian Civil Code. The Government also indicates that employees have the right to be members of several unions at the same time and that those who wish to join the ESFTUG can do so. In the light of the above, it is not clear to the Committee whether the PES is a workers’ organization in the sense of Article 10 of Convention No. 87, i.e. an organization of workers established for furthering and defending the interests of workers. It requests the Government to provide further information on the status of this organization, so as to allow the Committee to make an assessment in this regard. The Committee recalls, however, that the existence of an organization which provides services or advantages to workers in the specific sector or area should not be used to encroach upon the activities of existing trade union organizations [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 313].
3. 653. The Committee notes that the Government refutes the allegation that the PES enjoys favourable treatment or that the ESFTUG was being discredited. While the Committee cannot determine whether any favoured treatment was provided to the PES or whether discrediting information has caused a decrease in the ESFTUG membership, it notes the allegations, which suggest the following violations of freedom of association rights: denial of access to the workplace of trade union members, refusal to transfer trade union dues to the ESFTUG account, dismissal of the ESFTUG members and refusal of the Government to negotiate a sectoral agreement with the ESFTUG. The Committee regrets that no information has been provided by the Government in respect of these allegations, which are detailed below. The Committee draws the Government’s attention to the importance of formulating detailed replies to the allegations brought by complainant organizations, so as to allow the Committee to undertake an objective examination. It expects that the Government will be more cooperative in the future.
4. 654. The Committee notes that the GTUC alleges that, on 8 February 2008, the director of Tbilisi Public School No. 10 denied access to the school territory to the ESFTUG representatives, who wished to participate in the PES organized meeting with the ESFTUG members of that school. The Committee considers that, when a meeting with trade union members is held, their union representatives should be granted access to the workplace to participate in such a meeting so as to enable them to carry out their representation function [see Digest, op. cit., para. 1104]. The Committee expects the Government to ensure respect for this principle.
5. 655. The Committee further notes several alleged instances of non-transfer of trade union dues to the ESFTUG account despite written requests by the ESFTUG members. Allegedly, when in April 2008 employees of the Senaki nursery made written requests to the head of the Senaki educational resource centre to transfer their membership dues to the ESFTUG, their request was ignored and their membership fees continued to be transferred to the PES account. In this respect, the Committee notes that while in its reply the Government does not refer to the issue of check-off facilities specifically, it indicates that the Public Prosecutor has carried out an investigation at the Senaki nursery school at the request of the ESFTUG and found that the accusations could not be proven and that all persons who wished to join the ESFTUG did so. The complainant further alleges that, on 12 July 2008, nine teachers of a Nakolakevi public school requested the school director to transfer their membership dues to the ESFTUG account; however, July and August dues were allegedly transferred to the PES. Furthermore, the GTUC alleges that the check-off facility previously enjoyed by the ESFTUG at Tbilisi Public Schools Nos 115, 127 and 160 has been discontinued. The Committee recalls 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 [see Digest, op. cit., para. 475]. Furthermore, workers should be ensured the right to choose freely the organization to which they wish to contribute for the defence of their occupational interests. It requests the Government to ensure that the check-off facilities at the abovementioned establishments are re-established, without delay, if they have not yet been, and to ensure that any remaining arrears are paid to the ESFTUG. The Committee requests the Government to keep it informed in this respect.
6. 656. The Committee also notes the allegation of dismissal of the following eleven ESFTUG members: Ms Makvala Madzgharashvili, head of ESFTUG regional trade union of Dedoflisckaro district, Ms Eter Davitashvili, Ms Natela Popiashvili, Mr Vasil Paatashvili, Ms Manana Zurashvili, Ms Maia Pockhverashvili, Ms Tamila Javashvili, Ms Tamar Aladshvili, Ms Mzia Ivanidze, Ms Marina Natroshvili and Ms Matina Khichenko. According to the complainant, they were dismissed by the director of Public School No. 1 of Dedoflisckaro district pursuant to section 37(d) of the Labour Code, following their refusal to become members of the PES, as requested by the school director. The Committee, recalling that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 835], requests the Government to conduct an independent inquiry into this allegation and, if it is found that these teachers were dismissed on account of their ESFTUG affiliation, to take the necessary measures to reinstate them without loss of pay. If reinstatement is not possible, for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the trade union leader and members concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissal. It requests the Government to keep it informed in this respect.
7. 657. The Committee further recalls that, in an earlier case concerning Georgia, it has had the occasion to comment upon sections 37(d) and 38(3) of the Labour Code and expressed its concern that the current legal framework in the country may well be insufficient for ensuring adequate protection against anti-union discrimination [see 356th Report, Case No. 2663, para. 762]. As in this previous case, the Committee requests the Government to take the necessary measures, without delay, in full consultation with the social partners concerned, to amend the Labour Code so as to ensure specific protection against anti-union discrimination, including anti-union dismissals, and to provide for sufficiently dissuasive sanctions against such acts. It requests the Government to keep it informed of the measures taken in this respect.
8. 658. The Committee welcomes the information from the examination of the previous case concerning Georgia, with regard to the establishment of the National Social Dialogue Commission and the instruction issued by the Prime Minister for issues concerning anti-union discrimination to be investigated and discussed therein. The Committee requests the Government to keep it informed of all developments in this regard.
9. 659. With regard to the alleged refusal by the Government to negotiate a sectoral agreement with the ESFTUG, the Committee draws the Government’s attention to Article 4 of Convention No. 98, according to which measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee requests the Government to indicate the measures taken or envisaged to promote collective bargaining in the education sector and to inform it as to whether any collective agreement has since been signed in the education sector and whether the ESFTUG was a party to such an agreement or participated in the negotiation.