Demande directe (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

With reference to its observation, the Committee notes the latest proposed amendments to the 1994 Act respecting the procedures for the settlement of collective labour disputes.

In its previous comments based on an earlier version of proposed amendments to the Act respecting the procedures for the settlement of collective labour disputes of 1994, the Committee, noting the restrictions which could be placed on strikes in the event of a threat against "national security", recalled that strikes should only be restricted: (1) in cases of acute national crisis; (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 whole or part of the population; and (3) with respect to public servants exercising authority in the name of the State. The Committee notes from the latest proposed amendments that section 11 generally provides that restrictions on the exercise of the right to strike may be imposed by legislation if this is in the interests of national security, public order, public health, or the rights and freedoms of third parties. Proposed section 17 grants the President of the Republic the right to postpone or suspend strike action in the event that there is a genuine threat to national security, public order, or to the life, health, rights and freedoms of the population until such time as the dispute is settled by the appropriate court but not for longer than three months. The proposed section 20 empowers the courts to deem a strike to be unlawful when it is in violation of the Act and, in particular, where there is a genuine threat to national security, the vital interests of society, public order, or to the safety, health rights and freedoms of third parties. If the term "national security" is retained in these sections, the Committee trusts that it will be narrowly interpreted so as to fall within one of the three above-noted situations in which strikes may be restricted.

Furthermore, the Committee notes that the proposed section 10 (paragraph 2) and 10A (paragraph 5) would appear to provide for compulsory arbitration in cases of disputes, inter alia, which arise in associations under the direct authority of the Belarus Government and which relate to the establishment, modification or termination of agreements at republic and sector levels. Recalling that restrictions on the right to strike in the public service should be limited to public servants exercising authority in the name of the State, or to essential services in the strict sense of the term, the Committee trusts that "associations under the direct authority of the Government" and "agreements at the republic and sector levels" are limited to this restricted category of public servants and requests the Government to indicate in its next report whether this is indeed the case.

As concerns negotiated minimum services, the Committee recalled in its previous comments that such services should be limited to the operations which were strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear by any strike action. Noting that the proposed section 15 provides generally for the establishment of and respect for the maintenance of minimum services without restricting in any way the types of enterprises in which they might be necessary, the Committee would once again draw the Government's attention to paragraph 161 of its 1994 General Survey on freedom of association and collective bargaining wherein it indicates that such services must be genuinely and exclusively minimum. It therefore trusts that section 15, once amended, will be interpreted in accordance with the above-noted principle concerning negotiated minimum services.

The Committee notes that proposed section 30 provides for the possible imposition of disciplinary sanctions, and other sanctions provided for under the national legislation, in the event of participation in a strike subsequent to a court determination that such a strike is unlawful. In the event that penal sanctions may be imposed in this regard, the Committee wishes to draw the Government's attention to paragraphs 177 and 178 of its 1994 General Survey in which it indicates that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association and that civil or penal sanctions should not be disproportionate to the seriousness of the violations.

1992 Trade Union Act

In an earlier comment, the Committee had noted that under section 2, paragraph 1, of the 1992 Trade Union Act "citizens" had the right to establish trade unions. It recalled that the right of workers and employers, without distinction whatsoever, to establish and join organizations implied that any worker or employer residing in the territory of a given State should enjoy the right to organize as provided for in the Convention. While the Government has stated that the Constitution and the Act of 3 June 1993 on the legal rights of foreign citizens and stateless persons provides that such persons shall enjoy the same rights as citizens of Belarus and, in particular, the right to join civil and social associations, the Committee is still bound to note that the restrictive term "citizen" remains in the Trade Union Act. The Committee would therefore request the Government to indicate the measures envisaged to amend the Trade Union Act in order to harmonize it with the national legislation and so as to bring it into conformity with the Convention in this respect.

Draft Labour Code

Noting from the Government's report that the draft Labour Code is presently before the Parliament, the Committee requests the Goverment to transmit a copy of the new Labour Code once it has been adopted.

Penal Code

The Committee requests the Government to supply a copy of the Penal Code actually in force.