Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee takes note of the information provided in the Government’s report. It also notes the conclusions of the Committee on Freedom of Association in Case No. 2090 (324th, 325th and 326th Reports, approved by the Governing Body at its 280th, 281st and 282nd Sessions in March, May and November 2001, respectively).

Article 2 of the Convention. Right of workers and employers to establish organizations of their own choosing without previous authorization. The Committee takes note of the information provided by the Government concerning Presidential Decree No. 2 of 26 January 1999 regarding measures regulating the activity of political parties, trade unions and other social associations. The Government states that provisions concerning the banning of activities and the liquidation of trade unions have never been used since all trade unions have been registered and that particular instances of non-registration have only occurred at the subordinate level of trade union organizations’ structures. Furthermore, according to the Government, liquidation can only take place after a court decision, which can be appealed. The Committee notes, however, that under section 3 of the Decree, the activities of non-registered trade union organizations are banned. The Committee therefore requests once again that the Government amend the Decree so that section 3, concerning the banning of activities of non-registered associations, does not apply to trade unions at any level of the union’s organizational structures.

The Committee notes the Government’s indications that it recognizes that the main reason for the refusal to register the abovementioned trade union organizations arose from the matter of legal address. It, therefore, has drafted amendments to Presidential Decree No. 2 abolishing the registration requirement now applied to trade union organizations that are not legal persons that the existence of a legal address must be confirmed and significantly widening opportunities for trade union organizations that are legal persons. As concerns the minimum membership requirement of 10 per cent of workers at enterprise level, the Committee notes the Government’s indication that, in accordance with drafted amendments, it proposes to revoke this requirement. The Committee requests that the Government provide the copy of the draft amendments and that it keep it informed of any developments in this respect.

Article 3. Right of workers’ organizations to organize their activities in full freedom. In its previous comments, the Committee had recalled that the right of trade unions to organize their activities implies the recognition of the right to strike and that this right may only be limited, or even prohibited, in cases of acute national crises, or for public servants exercising authority in the name of the State or essential services in the strict sense of the term, that is to say only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee noted, however, that sections 388 and 393 of the Labour Code permit legislative limitations on the right to strike in the interest of rights and freedom of other persons, which could be used in a manner so as to restrict the legitimate exercise of the right to strike. The Committee once again requests that the Government amend these provisions so as to repeal the reference to rights and freedom of other persons to ensure that workers fully enjoy the rights guaranteed by the Convention. The Committee also requests that the Government keep it informed of any practical application of these sections.

Regarding the requirement of the notification of strike duration under section 390 of the Labour Code, the Committee notes the Government’s indication that this requirement is imposed in order to establish necessary minimum services. The Committee nevertheless considers that a requirement that the duration of a strike be announced when giving notice is contrary to the right of workers’ organizations to organize their activities and formulate their programmes in full freedom. The right to strike is, by definition, a means of economic pressure available to workers and their organizations for the promotion and defence of their economic and social interests. The Committee therefore once again requests the Government to repeal this notification requirement.

The Committee also notes the Government’s reply concerning the obligation to provide minimum services during the period of the strike under section 392 of the Labour Code to the effect that the legislation does not provide a list of essential services, and that, as a result, the necessary minimum services are negotiated or defined in collective agreements. Moreover, according to the Government, the level of the necessary minimum service depends on the importance of the enterprise in question, ranging from the minimum to the maximum in cases when the enterprise is ensuring a service considered essential. The Committee recalls that minimum services should only be imposed in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the disputes, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, in services which are of public utility. The Committee emphasizes that the notion of minimum services should be limited to such cases and should not be applied so as to require such a service in all undertakings. The Committee considers that, in cases where minimum services are negotiated, such a service must be genuinely and exclusively a minimum service, that is one which is limited to the operations which are 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 the strike action (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 160 and 161).

The Committee notes the Government’s indication that the possibility of establishing a body empowered to take a final decision in cases where the parties disagree about the minimum service to be provided would be examined. The Committee would point out in this respect that such a role could be filled by already existing bodies such as the labour court or independent arbitration. The Committee once again requests that the Government amend the Labour Code so as to ensure that the final determination concerning minimum services be made, in the event of disagreement between the parties, by an independent body and to further ensure that minimum services are not required in all undertakings but only in the situations outlined above or to ensure the safe operation of necessary facilities.

Furthermore, the Committee notes Presidential Decree No. 11 of 7 May 2001 on several measures to improve the procedures for holding assemblies, rallies, street marches and other mass events and picketing actions. The Committee notes that paragraph 1.5 of the Decree permits the dissolution of a trade union in the event that an assembly, demonstration or picketing action results in the disruption of a public event, the temporary termination of an organization’s activities or disruption of transport, loss of life, or serious bodily harm to one or more persons. The Committee considers that the dissolution of a trade union is an extreme measure and recourse to such action on the basis of a picket action resulting in the disruption of a public event, the temporary termination of an organization’s activities or disruption of transport is not in conformity with the right of workers’ organizations to organize their activities in full freedom. The Committee draws the Government’s attention to paragraph 174 of its 1994 General Survey wherein it considered that restrictions on pickets should be limited to cases where the picketing ceases to be peaceful. The Committee therefore requests the Government to take the necessary measures to ensure that this provision of the Decree is modified so that restrictions on pickets are limited to cases where the action ceases to be peaceful or result in a serious disturbance of public order and that any sanctions imposed in such cases be proportionate to the gravity of the violation.

Articles 5 and 6. The Committee notes with regret that the Government does not reply to its previous comment concerning section 388 of the Labour Code that prohibits strikers from receiving financial assistance from foreign persons. The Committee further notes Presidential Decree No. 8 of 12 March 2001 regarding certain measures aimed at improving the arrangement of receiving and using foreign gratuitous aid. In particular, it notes paragraph 4(3) of the Decree which provides that foreign gratuitous aid, in any form, cannot be used towards the preparation and carrying out of public meetings, rallies, street processions, demonstrations, pickets, strikes, designing and disseminating campaign material, as well as running seminars and other forms of mass campaign of the population. Paragraph 5.1 provides that violation of this requirement by trade unions and other public associations can result in the termination of their activities and the provision of such aid by representative bodies of foreign organizations and international non-governmental organizations on the territory of Belarus can result in the termination of the activities of such bodies.  The commentary to the Decree emphasizes that "even a single violation can bring about the elimination of a public association, fund or other non-profit organization". The Committee once again draws the Government’s attention to paragraph 197 of its 1994 General Survey wherein it considered that legislation which prohibits trade unions from receiving financial aid or subsidies from foreign organizations poses serious difficulties in light of the right of organizations to affiliate with international organizations and receive the assistance and benefits which come from such affiliation. The Committee considers that the aspects of the Decree which prohibit trade unions, and employers’ organizations, from using foreign aid, financial or otherwise, from international organizations of workers or employers are incompatible with Articles 5 and 6 of the Convention. The Committee therefore once again requests the Government to take the necessary measures to amend both the Decree and section 388 of the Labour Code so that national workers’ and employers’ organizations may receive assistance, even financial, from international workers’ and employers’ organizations in pursuit of their legitimate aims.

In addition, the Committee is addressing a request regarding certain other points directly to the Government.