Observation (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee notes the Government’s report, which for the most part repeats the information previously submitted by the Government. The Committee further notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 31 August 2005 concerning the application of the Convention in practice and relating to the on-going disputes over trade union property. The Committee requests that the Government provide its observations thereon.

The Committee hopes that in its next report the Government will provide full information on the following matters raised in its previous direct request.

Article 2 of the Convention. Right of workers and employers to establish organizations of their own choosing. The Committee had previously noted that section 2(9) of the Law on Trade Unions provided that a trade union could be formed on the initiative of not less than 100 persons (15 members are required to establish a primary trade union). The Committee notes the Government’s statement to the effect that it is outside of the Government’s competence to make any changes in respect of this requirement. The Committee recalls that when a State ratifies a Convention, it undertakes a commitment to respect fully its provisions and principles. With regard to the minimum membership requirement, the Committee once again recalls that, while the existence of such a requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee points out that the minimum 100 members requirement is too high. The Committee asks the Government to take necessary measures to amend section 2(9) of the Law on Trade Unions so as to lower the minimum trade union membership requirement and to ensure that the right to organize is effectively guaranteed.

The Committee once again requests that the Government indicate the applicable procedure for registration of trade unions and provide the relevant legislative texts.

Article 3. The Committee notes the comments made by the ICFTU with regard to the ongoing dispute over trade union property and also concerning Case No. 2387 examined by the Committee on Freedom of Association. This case concerned the seizure of trade union assets and the use of various means of pressure: intimidating statements addressed to the Georgian Trade Union Amalgamation (GTUA); arrests of the GTUA leaders; illegal audits of the GTUA financial activities; threats and overall refusal of the Government to have a constructive dialogue with the GTUA. The Committee condemns the anti-union tactics, pressure and intimidation the Government chose to use in dealing with this issue and regrets that the Government has so far refused all dialogue with the GTUA. The Committee therefore urges the Government to engage in consultations with the trade union organizations concerned in order to settle the question of the assignment of property and to keep it informed in this respect.

The Committee notes that under section 12(2) of the Law on the Procedure for the Settlement of Collective Disputes, a strike can be called further to a vote requiring a 75 per cent quorum and a majority of those voting. Considering that the quorum set out for a strike is too high and may potentially impede recourse to strike action, particularly in large enterprises, the Committee requests the Government to amend its legislation so as to lower the quorum required for a strike ballot and to keep it informed of the measures taken or envisaged in this regard.

The Committee further notes that, according to section 12(5)(b) of the Law, the duration of the strike should be indicated in an advance notice. The Committee recalls that the supervisory bodies have already indicated that forcing workers and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee therefore asks the Government to amend its legislation so as to ensure that no legal obligation to indicate the duration of a strike action is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.

The Committee also notes that, according to section 12(5)(d), a proposal of minimum services should be indicated in an advance notice. Section 14(4) further provides that in the case of failure to reach an agreement, minimum services are established by the bodies of executive authority, local self-governing and administrative bodies. In the view of the Committee, the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 160 and 162). The Committee asks the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and, if so, it requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee requests that the Government amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Moreover, the Committee notes that according to section 15(2) and (9) of the Law on the Settlement of Collective Disputes, some workers appear to be excluded from exercising the right to strike and it is the President of Georgia who makes the decision on the settlement of a collective labour dispute for these workers. However, this section does not specify the category of workers excluded. The Committee recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants exercising authority in the name of the State, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. If the right to strike is subject to restriction or a prohibition, workers who are deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedures, which should furthermore provide sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., 1994, paragraph 164). The Committee asks the Government to list any categories of workers which may be excluded by relevant legislation from exercising their right to strike and to provide copies of these laws. It further requests that the Government review its legislation so as to ensure that in the event of a labour dispute, workers who are deprived of the right to strike are afforded compensatory guarantees for the settlement of the dispute by an impartial and independent body and not by the President. The Committee requests that the Government keep it informed of measures taken or envisaged in this regard.

The Committee notes section 18 of the Law, which provides that persons engaging in an illegal strike bear responsibility in accordance with the legislation of Georgia. The Committee notes that, according to the information provided by the Government, participation in an illegal strike is punishable by a fine, or by corrective labour for up to one year, or by imprisonment of up to two years (section 165 of the Penal Code). Furthermore, in cases where failure to comply with the established strike procedure leads to grave consequences, the strike organizers are liable to the same sanctions (section 167 of the Penal Code). The Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, the Committee emphasizes that any sanction should not be disproportionate to the seriousness of the violation (see General Survey, op. cit., paragraphs 177 and 178). The Committee therefore asks the Government to amend sections 165 and 167 of the Penal Code and, in particular, to repeal the reference to corrective labour and imprisonment so as to ensure that sanctions for participation or organization of an illegal strike are not disproportionate.

Article 6. Rights of federations and confederations. The Committee notes that section 13 of the Law on Trade Unions, which provides for the right to participate in the settling of collective labour disputes, including strike action, does not mention expressly that this right is also afforded to federations. The Committee requests that the Government indicate whether federations of trade unions may also call for a strike action in defence of their members’ interests.

The Committee asks the Government to forward a copy of the Law of Georgia on Employers of 28 October 1994 with its next report.

The Committee is also addressing a request on another point directly to the Government.