Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the information contained in the Government’s report, the discussion in the Conference Committee on the Application of Standards and the conclusions of the Committee on Freedom of Association in Case No. 2090 (329th Report approved by the Governing Body at its 285th Session in November 2002). It further notes the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and requests the Government to provide its comments thereto.

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 on the number of registered trade unions since the publication of Presidential Decree No. 2 of 26 January 1999 and of the Government’s statement that all the trade unions have undergone registration, with only isolated cases of organizational units of trade unions not being registered. The Committee also notes the Government’s statement that it considers that the issue of registration should be further examined and that the National Council has adopted the decision to establish a tripartite group of experts on the application of ILO standards which envisages examining the recommendations of the Committee of Experts during one of its first meetings. In this respect, the Committee hopes that the necessary measures will be taken to address the previous concerns of the Committee, in particular, as concerns the application of Article 2 of the Convention, those regarding: the matter of legal address, the need to amend section 3 of Presidential Decree No. 2 concerning the banning of activities of non-registered associations and to repeal the minimum membership requirement of 10 per cent of workers at enterprise level. The Committee requests the Government to keep it informed of all the measures taken or envisaged in order to bring its legislation into conformity with the Convention.

The Committee takes note that the collective labour relations of employees of governing councils, who are excluded from the Labour Code by virtue of section 6, are regulated by sections 861-869 of the Civil Code. The Committee notes the Government’s indication that the members of the advisory boards and other supervisory bodies of the organizations do not act as workers and that a "worker" means a person who is in an employment relationship with an employer on the basis of a concluded labour agreement of employment. The Committee recalls however that section 6 refers to "employees" of advisory councils and not "members". It therefore requests that the Government indicate how the right to organize is guaranteed for this category of employees.

Article 3. Right of workers’ organizations to organize their activities in full freedom. The Committee recalls that its previous comments focused on the need to amend the legislation on the right to strike. In particular, the Committee commented on the following Labour Code provisions:

-           sections 388 and 399, permitting 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;

-           section 390, providing for the requirement of the notification of strike duration;

-           section 392, providing for the obligation to provide minimum services during the period of the strike.

The Committee once again requests that the Government amend these provisions so as to ensure the right of workers’ organizations to organize their activities in full freedom. The Committee requests that the Government keep it informed of measures taken or envisaged in this respect.

The Committee takes note of the information provided by the Government concerning Presidential Decree No. 11 of 7 May 2001. The Government states that there were no cases of dissolution of trade unions for the violation of the procedure for holding mass events. The Committee notes, nevertheless, 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. The Committee once again recalls 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 once again 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 once again requests the Government to take the necessary measures to ensure that this provision of the Decree is modified so that restrictions on pickets, assemblies and demonstrations are limited to cases where the action ceases to be peaceful or results in a serious disturbance of public order and that any sanctions imposed in such cases be proportionate to the gravity of the violation.

The Committee further notes with concern from the conclusions of the Committee on Freedom of Association, in Case No. 2090, that there has been interference by the public authorities in recent trade union elections. The Committee recalls that workers’ organizations have the right to elect their representatives in full freedom and that the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. The Committee requests that the Government indicate any measures taken or envisaged, including the adoption of explicit legislative provisions prohibiting and sanctioning any such interference, aimed at ensuring the full application of Article 3 both in law and in practice.

The Committee notes that public servants, as defined under section 8 of the Act on the Fundamental Principles of Employment in the Public Service of 23 November 1993, include those working in the National Bank and therefore, by virtue of section 12, this category of employees does not enjoy the right to strike. The Committee considers that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see 1994 General Survey on freedom of association and collective bargaining, paragraph 158) and therefore requests the Government to take necessary measures to ensure that employees of the National Bank may have recourse to strike action, without penalty. It requests that the Government keep it informed of any measures taken in this respect.

Articles 5 and 6. In its previous comments the Committee recalled the need to amend section 388 of the Labour Code, which prohibits strikers from receiving financial assistance from foreign persons and Presidential Decree No. 8 of March 2001 regarding certain measures aimed at improving the arrangement for receiving and using foreign gratuitous aid, in particular, its paragraphs 4(3) and 5.1. The Committee notes an indication in the Government’s report that there were no cases of denying registration for foreign gratuitous assistance and that seven applications from trade unions to receive foreign funds had been approved. The Committee recalls that the mentioned paragraphs of the Decree provide 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 and that violation of this requirement by trade unions and other public associations can result in the termination of their activities. 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". Considering that these provisions of the Decree are incompatible with Articles 5 and 6 of the Convention, the Committee once again asks 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. It requests the Government to keep it informed of any measure taken in this respect.