Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the information contained in the Government’s report, the conclusions of the Committee on Freedom of Association in its review of the measures taken by the Government to implement the recommendations made by the Commission of Inquiry (345th Report, approved by the Governing Body at its 298th Session) and the discussion that took place in the Conference Committee on the Application of Standards in June 2007. The Committee also takes note of the reports of the missions carried out in Belarus in January 2007 (to participate in a seminar for judges and court prosecutors’ officers) and June 2007 (in response to the request made by the Conference Committee on the Application of Standards in 2007). The Committee further notes the comments made by the International Trade Union Confederation (ITUC) on the application of the Convention in law and in practice. Finally, the Committee notes from the Government’s report that consultations relating to the recommendations of the Commission of Inquiry were held in Geneva in February and May 2007 between the Government’s representatives and the Office.

The Committee recalls that all of its outstanding comments have raised issues directly relating to the recommendations of the Commission of Inquiry.

Article 2 of the Convention. The Committee recalls that in its previous comments it had noted that Presidential Decree No. 605 on certain issues of state registration of public associations and their unions (confederations) of 6 October 2006, abolished the Republican Registration Commission. It further noted that responsibility for registration now lies with the Ministry of Justice, departments of justice of the regional executive councils and the Minsk City Executive Committee, and requested the Government to keep it informed of the manner in which registration is carried out by these authorities, as well as of any practical obstacles noted in relation to the right of workers to form and join organizations of their own choosing. The Committee regrets that no information was provided by the Government in this respect, except for an indication that in 2006–07, four out of six trade unions affiliated to the Radio and Electronic Workers’ Union (REWU), which submitted applications for registration, were registered. The Committee understands that two organizations remain unregistered. Furthermore, the Committee notes from the conclusions of the Committee on Freedom of Association contained in its 345th Report, that no progress had been made in respect of the Commission’s recommendations to register the primary-level organizations that were the subject of the complaint. The Committee further notes that the non-registration of primary trade organizations has led to the denial of registration of three regional organizations of the Belarusian Free Trade Union (BFTU) (organizations in Mogilev, Baranovichi and Novopolotsk-Polotsk). The Committee therefore expresses the firm hope that the Government will take all necessary measures for the immediate re-registration of these organizations both at the primary and the regional level so that these workers may exercise their right to form and join organizations of their own choosing without previous authorization. It once again further requests the Government to keep it informed of the process of registration before such bodies and to provide information on the number of organizations registered and those denied registration.

The Committee notes the Government’s indication that in order to improve legislation and practice with regard to the establishment and registration of trade unions, a draft trade union law has been prepared with the participation of the social partners and the assistance of the ILO. With the adoption of that law, Presidential Decree No. 2 of 1999 will cease to have effect. The Committee takes note of the draft law on trade unions in its May 2007 version and wishes to raise the following points.

The Committee notes that the draft provides for a simplified procedure for the establishment of trade unions at the enterprise level for unions without legal personality, which would simply be placed in the register (recorded), as opposed to those with legal personality, which must be registered. However, the practical distinction in Belarus between trade unions with and those without legal personality is not sufficiently clear to the Committee. The Committee must once again recall that, when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of organizations, the conditions for acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 76). The Committee therefore requests the Government to provide full details on the envisaged distinction between unions with legal personality and those without, as well as on the impact that this distinction would have upon the functioning of trade unions.

The Committee further notes that the draft proposes to maintain the 10 per cent membership requirement to be registered at the enterprise level (section 15 of the draft law). Recalling that for a number of years it has been requesting the Government to amend this minimum membership requirement, the Committee requests the Government to take the necessary measures to lower this requirement, which it considers too high, particularly in large enterprises.

The Committee also notes that the legal address requirement is maintained for all those enterprise-level trade unions wishing to register, as well as for all higher-level trade unions. Those trade unions at the enterprise level not seeking legal personality would need to provide a contact address. The Committee notes that the draft does not provide for a clear definition of “contact address” and “legal address”. In this respect, the Committee recalls that the Commission of Inquiry had noted that the requirement of legal address has created obstacles to trade union registration due, among other reasons, to the absence of clear rules on what may be an appropriate location for an organization’s legal address if the location with a qualified legal address is not provided by the employer. In light of the frequency with which requests for registration at all levels had been denied on the basis of an unacceptable legal address, the Committee requests the Government to take the necessary measures to ensure that any new legislation allows registration of all workers’ organizations requesting registration on the basis of simplified requirements concerning the provision of a valid address, regardless of the level.

In addition, the Committee notes that the draft law maintains a strong link between representativeness and the rights of trade unions, which had been previously criticized by the Committee, as well as by the Committee on Freedom of Association. The Committee considers that the extent of such privileges to representative unions could unduly influence the choice of organization by workers and compromise the right of workers to establish and join organizations of their own choosing (see General Survey, op. cit., paragraphs 98 and 104). The Committee further considers that the granting of such extensive privileges to representative unions combined with the uncertainty around the status that may be obtained by unions without legal personality could give rise to undue influence on the choice made by workers of the organization they wish to join. The Committee refers to the conclusions of the Committee on Freedom of Association contained in paragraph 93 of its 345th Report, where the latter recalled that on several occasions, it had advised the Government against introducing changes to the trade union legislation in respect of representativeness. It considered that before establishing the notion of representativeness, the Government should ensure an atmosphere in which trade union organizations, whether within or outside the traditional structure, are able to flourish in the country. The Committee, like the Committee on Freedom of Association, urges the Government to abandon this approach and to ensure that the new law on trade unions will fully and truly ensure freedom of association and the rights of all workers to form and join organizations of their choosing.

The Committee notes that the registration (recording) procedure provided for in Chapter 3 of the draft law appears to be excessively detailed. The Committee considers that while member States remain free to provide such formalities on their legislation as appears appropriate to ensure the normal functioning of occupational organizations, the registration formalities should not impair the guarantees laid down by the Convention in practice (see General Survey, op. cit., paragraph 74). The Committee recalls that the Commission of Inquiry considered that the main problem encountered by trade unions during the registration process was the application of the legislation by the registering authorities in practice. The Committee considers that with an overly regulated registration procedure, there is a risk that the registration authorities could easily find a pretext for not registering a union. In particular, pursuant to section 21 of the draft law, the state registration may be postponed in the case of “shortcomings in the preparation of documents”, which may be broadly interpreted by the registration authorities. The Committee recalls that problems of compatibility with the Convention arise when competent administrative authorities make excessive use of their discretionary powers and are encouraged to do so by the vagueness of the relevant legislation (see General Survey, op. cit., paragraph 75). The Committee therefore requests the Government to ensure that registration formalities are not such as to give rise, in practice, to impediments to the guarantees laid down in the Convention.

The Committee notes the Government’s indication that it had carried out consultations on the proposed draft with the social partners under the auspices of the Council for the Improvement of Legislation in the Social and Labour Spheres (Council of Experts). All interested parties, including the representatives of the Federation of Trade Unions of Belarus (FPB) and the Congress of Democratic Trade Unions (CDTU), had an opportunity to express their views on the new Law. An ILO mission, which visited Belarus in June 2007, took part in a meeting of the Council of Experts. The Government states that during the examination of the draft law on trade unions, the ILO representatives expressed the view that it would not be helpful at the present stage to introduce amendments to legislation which are not supported by all the parties involved in social dialogue. The Government adds that it was emphasized, in particular, that the text of the Trade Unions Act, as drawn up by the Government, raises a number of important and difficult questions (for example, the representativeness of trade unions), which will inevitably require time for further examination. In this regard, the ILO mission proposed that the Government consider the possibility of an alternative approach: not adopting the new law for the time being but focusing on the key issue, namely, registration of trade unions. The results of the ILO mission in Minsk were subsequently discussed by the Government. In the light of the mission’s recommendations, the decision has been taken to continue with efforts to improve trade union legislation with a view to achieving consensus between the parties. The Committee notes, however, from the mission report, the serious concerns raised by the mission in respect of: (i) the issue of registration, (ii) the difference between trade unions with legal personality and those without, and (iii) the issue of representativeness. The Committee expresses the firm hope that the future draft law on trade unions will be further developed in full consultation with all the trade unions concerned and that the final law will be in full conformity with the provisions of the Convention. The Committee requests the Government to transmit a copy of the draft trade union law as soon as it has been finalized so that it may assess its conformity with the Convention.

Article 3 of the Convention. The Committee notes that according to section 41(3) of the draft law on trade unions, officials of the relevant registration authorities and local executive and management are entitled to request and obtain information on questions relating to the statutory activities of trade unions and to examine their documents and decisions. It is not clear to the Committee whether the control over trade union activity could be conducted at any time at the discretion of the competent authorities. In this respect, it considers that supervision should be limited to the obligation of submitting periodic financial reports or to cases where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe upon the principles of freedom of association). Similarly, there is no violation of Convention No. 87 if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of corruption. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording the necessary guarantees of impartiality and objectivity. Problems of compatibility with the Convention arise when the law gives the authorities powers of control, which go beyond the principles set forth in the previous paragraph, for example, if the administrative authority has the power to examine the books and other documents of an organization or conduct an investigation and demand information at any time (see General Survey, op. cit., paragraphs 125 and 126). The Committee requests the Government to ensure that the draft law is in conformity with the above principle.

The Committee notes with regret that no information has been provided in respect of the steps taken to amend the Law on Mass Activities and sections 388, 390, 392 and 399 of the Labour Code, and to ensure that National Bank employees may have recourse to industrial action, without penalty. The Committee must therefore once again recall that it has been asking the Government to amend these provisions for several years now. Considering that the abovementioned legislative provisions are not in conformity with the right of workers to organize their activities and programmes free from interference by the public authorities, the Committee reiterates its previous requests and asks the Government to keep it informed of the measures taken in this respect.

Articles 3, 5 and 6 of the Convention. The Committee regrets that no information has been supplied by the Government in respect of the measures taken 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. The Committee notes the Government’s indication that Decree No. 24 does not prohibit receiving foreign aid, including from international trade unions, but only provides for conditions of its use and for the procedure of its registration. The Government reiterates that the provision in the Decree for dissolution of a trade union in case of violation has never been used; thus there is no basis for amending the existing procedure of receiving foreign aid. The Committee must recall that it does not consider that the fact that the dissolution provision has not been used can lead to the conclusion that trade union activities have not been hindered, as the mere existence of this prohibition and its legal consequences are sufficient to hinder trade unions from using financial assistance in this manner. The Committee must therefore reiterate that restrictions on the use of foreign aid for legitimate trade union activities is contrary to the right of national workers’ and employers’ organizations to receive financial assistance from international workers’ and employers’ organizations in pursuit of these aims and once again requests the Government to take the necessary measures to amend both Decree No. 24 and section 388 of the Labour Code so that workers’ organizations are not prohibited to use such aid to support industrial action or any other legitimate activity.

The Committee considers that the current situation in Belarus remains far from ensuring full respect for freedom of association and the application of the provisions of the Convention. Noting the indications made by the Government in its report that it would continue with its efforts to implement the recommendations of the Commission of Inquiry and would actively involve the social partners and seek cooperation with the Office in that process, the Committee expresses the firm hope that the Government will take the necessary steps for the full implementation of the recommendations of the Commission of Inquiry without delay and will ensure that any new legislation in the field of trade union rights is in full conformity with the provisions of the Convention.

It further expresses the firm hope that any acts of interference by the public authorities in the internal activities of trade unions will be publicly condemned.

The Committee requests the Government to respond to the comments made by the ITUC dated 3 October 2007.

[The Government is asked to supply full particulars to the Conference at its 97th Session.]