Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee recalls that a Commission of Inquiry was established at the 288th Session of the Governing Body (November 2003) to examine a complaint presented under article 26 of the ILO Constitution alleging the failure of the Government of Belarus to observe the present Convention and Convention No. 98. The Committee notes that the Commission of Inquiry completed its work in July 2004, and that its report was submitted to the Governing Body of the International Labour Office at its 291st Session (November 2004).

The Committee further notes the reply of the Government to the report of the Commission of Inquiry by virtue of article 29 of the ILO Constitution, which was noted by the Governing Body at its 291st Session (GB.291/6/1), in which the Government has indicated certain measures it intends to take in order to implement the recommendations of the Commission and referred to its need for ILO technical assistance in this regard. In particular, it notes the Government’s indication that it has established a special experts group, including representatives of government, trade unions, employers’ associations, non-governmental organizations and academics, to conduct a comprehensive review of its entire system of social and labour relations. The Committee trusts that the advisory group will represent a broad spectrum of society and, in particular, that the trade union representation will include all the national-level trade unions. It requests the Government to specify, in its next report, the composition of this advisory group, and to indicate the progress made in its review.

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) and the Congress of Democratic Trade Unions (CDTU) on the application of the Convention in their communications dated 24 September 2003 and 27 August 2004, respectively, and requests the Government to provide its observations thereon.

The Committee recalls that it has been making comments on the observance of the Convention over recent years on many of the same points examined by the Commission of Inquiry. It notes that the Commission has confirmed and expanded upon the concerns this Committee has been raising, as well as the Conference Committee on the Application of Standards, as to the application of this fundamental Convention.

Article 2 of the Convention. The Committee recalls that in its previous comments it had requested the Government to take the necessary measures to amend Presidential Decree No. 2 on some measures for the regulation of activities of political parties, trade unions and other public associations and its accompanying rules and regulations, particularly as concerns the legal address requirement and the minimum membership requirement of 10 per cent of workers at enterprise level in order to constitute enterprise trade unions.

The Committee notes in this respect that the conclusions and recommendations of the Commission of Inquiry confirm the Committee’s previous understanding that these requirements, as applied, amount to a condition of previous authorization for the formation of unions contrary to Article 2 of the Convention. It especially notes with concern the Commission’s findings that these requirements have impacted uniquely on those unions that are outside the structures of the Federation of Trade Unions of Belarus (FPB) or oppose its leadership, thus giving rise to apprehensions that they are being applied intentionally to suppress certain trade unions. Finally, it notes the Commission’s conclusions in respect of the Republican Registration Commission through which all decisions on registration appear to be made and its recommendation that, in the interests of transparency in decision-making and so as to ensure that registration is conducted as an administrative formality and not granted using arbitrary discretionary authority, the Republican Registration Commission should be disbanded.

The Committee therefore once again urges the Government to amend the relevant provisions of Presidential Decree No. 2 and its rules and regulations so as to eliminate any further obstacles that might be caused either by the legal address requirement or by the 10 per cent minimum membership requirement at enterprise level and to disband the Republican Registration Commission, so as to bring the Decree and its application into conformity with the provisions of the Convention.

The Committee further notes with deep concern the comments made by the CDTU in which it transmits information concerning draft amendments to the Law on Trade Unions, initiated by the Ministry of Justice. According to the CDTU these amendments, if adopted, would substantially increase the requirements for trade union registration at various levels. The criterion for a Republican level trade union would be increased from 500 to 30,000. The concept of territorial trade unions would also be introduced with a minimum membership requirement of 5,000.

The Committee recalls in this respect that the Commission of Inquiry had observed with concern indications made by the Government that it was reconsidering the representative nature of unions such as the CDTU on the National Council on Labour and Social Issues. The Commission considered that restricting social dialogue to one trade union federation, whose independence had been called into question on the basis of its findings, would not only have the effect of further anchoring a de facto state-controlled trade union monopoly, but would also infringe upon the right of workers to form and join organizations of their own choosing, provided in Article 2.

The Committee must express its deepest concern at the fact that the Government appears to be considering changes to the legislation that would ensure that there were no meaningful possibilities for trade union pluralism in the country. Indeed, as the result of these proposals would be to guarantee that the only social partner representing workers in the national consultative bodies would be the FPB, whose independence was called into question by the Commission of Inquiry, the Committee considers that these proposals infringe upon the right of workers to form and join organizations of their own choosing by treating one federation with such favouritism and placing it at such an advantage as to influence unduly the workers’ choice of organization. The Committee therefore urges the Government to retract the proposals referred to by the CDTU and to indicate the progress made in this regard.

Article 3. The Committee recalls that its previous comments referred to the need to amend the legislation as concerns certain restrictions relevant to industrial action, in particular sections 388, 390, 392 and 399 of the Labour Code, Presidential Decree No. 11 on several measures taken to improve the procedure for holding assemblies, rallies, street marches, demonstrations and other mass events and picketing actions, and the Fundamental Principles of Employment in the Public Service of 1993.

The Committee notes from the findings of the Commission of Inquiry that the Law on Mass Activities has for all intents and purposes replaced Presidential Decree No. 11. This Law maintains the restrictions on mass activities that were laid down in the Decree and further permits for dissolution of an organization for a single breach of its provisions, while organizers may be charged with a violation of the Administrative Code and thus subject to administrative detention. It further notes the Commission’s findings on the practical application of the Law on Mass Activities, in particular that the authorities routinely and unilaterally change the venue requested for a demonstration to an obscure and unfrequented location. In this respect, the Committee notes the findings of the Commission on the administrative detention of Mr. Bukhvostov, the then chairperson of the Belarus Automobile and Agricultural Machinery Workers’ Union (AAMWU), who was immediately arrested when, despite the authorities refusal to grant permission to his request to demonstrate in a prominent public square and their unilateral changing of the venue to a square far from the centre of town, he carried out a one-man protest in the prominent public square. It notes with particular concern the Commission’s finding that the application of the Law gave rise to a serious breach of Mr. Bukhvostov’s civil liberties.

The Committee therefore urges the Government to take the necessary measures to amend the Law on Mass Activities (as well as Decree No. 11 if it has not yet been repealed), so as to bring it into line with the right of workers’ and employers’ organizations to organize their activities. With reference to its previous comments, it further requests the Government to indicate the measures taken to amend sections 388, 390, 392 and 399 of the Labour Code and to ensure that National Bank employees, presently covered by the Fundamental Principles of Employment in the Public Service of 1993, may have recourse to industrial action, without penalty.

More generally, as regards its previous comments concerning Government interference in internal trade union affairs, the Committee notes with deep concern the Commission’s conclusions that:

The failure of the Government to provide a clear denial that instructions were issued by the Presidential Administration in 2000 to interfere in the internal affairs of trade unions, the fact that instructions were issued in 2001 and that, in March 2003, the President of the Republic gave the Minister of Industry two months to deal with Mr. Fedynich and Mr. Bukhvostov, the involvement of the Ministry of Industry and enterprise managers and the subsequent creation of the BIWU, and the involvement by the Chairperson of the State Aviation Committee in the decline and deregistration of the BTUATC, taken in conjunction with the changed affiliation of primary level organizations previously affiliated to the REWU or the AAMWU together with the actions taken against Mr. Fedynich and Mr. Bukhvostov give rise to the inescapable conclusion that the trade union movement has been and continues to be the subject of significant interference on the part of government authorities. That conclusion is reinforced by the failure of the Government to investigate the serious allegations made by the complainants or to take steps to guarantee the basic rights of freedom and independence of trade unions as repeatedly requested by the supervisory bodies of the ILO. The Commission concludes that this interference has resulted in undermining one of the most essential prerequisites of freedom of association: trade union independence. (See Trade Union Rights in Belarus, Report of the Commission of Inquiry, July 2004, paragraph 614.)

In the light of these conclusions, the Committee urges the Government to take steps immediately, in accordance with the recommendations of the Commission, to declare publicly that such acts of interference are unacceptable and will be sanctioned and to issue instructions to the Prosecutor-General, the Minister of Justice and court administrators so that any complaints of external interference made by trade unions are thoroughly investigated. It requests the Government to provide detailed information on the measures taken in this regard.

Articles 5 and 6. The Committee recalls its previous comments concerning the need to amend section 388 of the Labour Code and Presidential Decree No. 8 of March 2001 regarding certain measures aimed at improving the arrangement for receiving and using foreign gratuitous aid to bring them into conformity with Articles 5 and 6 of the Convention. The Committee notes from the findings of the Commission of Inquiry that Presidential Decree No. 24 on the receipt and use of free foreign aid has replaced Decree No. 8, but that it retains the previous restrictions placed on the use of foreign gratuitous aid by organizations, including workers’ and employers’ organizations. In its conclusions, the Commission stated that legislation which prohibits the acceptance by a national trade union or employers’ organization of financial assistance from an international workers’ or employers’ organization, unless approved by the Government, and provides for the banning of any organization where there is evidence that it has received such assistance, is not in conformity with the right of workers’ and employers’ organizations to benefit from the relations that may be established with an international workers’ or employers’ organization.

The Committee therefore once again urges the Government to amend section 388 of the Labour Code, which prohibits strikers from receiving financial assistance from foreign persons, and Decree No. 24 concerning the use of foreign gratuitous aid so that workers’ and employers’ organizations may effectively organize their administration and activities and benefit from assistance from international organizations of workers and employers.

In light of the above and of the information obtained from the Commission of Inquiry report, the Committee considers that all of these matters taken together demonstrate that there exist, both in law and in practice, serious discrepancies with the provisions of the Convention such that the survival of any form of an independent trade union movement in Belarus is truly at risk. The Committee therefore urges the Government to take all necessary measures in the nearest future so that workers may freely form and join organizations of their own choosing and so that these organizations may exercise their activities without government interference.