Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments made by the Georgian Trade Union Confederation (GTUC) in a communication dated 27 August 2008, the observations made thereon by the Georgian Employers’ Association (GEA), as well as the Government’s reply. The Committee also notes that the GTUC submitted allegations referring to the same matters to the Committee on Freedom of Association.

The Committee recalls that its previous comments concerned the Law on trade unions and the Labour Code of 2006. It notes that, in its report, the Government indicates that a memorandum was signed between the Ministry of Health, Labour and Social Affairs (MoHLSA), the GTUC and the GEA with a view to institutionalizing social dialogue in the country. Since then, the social partners have been regularly holding sessions to discuss issues concerning the labour legislation with an emphasis on the issues of compliance with Conventions Nos 87 and 98. The Committee further notes with interest that, in line with the conclusions of the Conference Committee on the Application of Standards, over the course of 2009, the ILO has been providing technical support to the tripartite constituents to advance the process of dialogue and the review of the labour legislation. The Committee further notes with interest the holding in October 2009 of an ILO tripartite round table in Tbilisi which discussed the current status of national labour legislation, application of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and promotion of tripartism in Georgia. The Committee also notes with interest Decree No. 335 of 12 November 2009 issued by the Prime Minister of Georgia, which formalized and institutionalized the National Social Dialogue Commission, as well as the creation of a tripartite working group to review and analyse the conformity of the national legislation with the findings and recommendations of the Committee and to propose the necessary amendments. The Committee hopes that any proposed amendments will take into account its comments and requests the Government to provide information on the developments in this regard.

Law on trade unions. The Committee had previously requested the Government to amend section 2(9) of the Law on trade unions so as to lower the minimum trade union membership requirement set at 100. The Committee notes the Government’s indication that this requirement concerns establishment of trade union confederations and not of primary trade unions. The Government provides examples of primary trade unions with a membership below 100 persons. The Committee notes that, according to section 2(3) of the Law, trade unions can be established at any enterprise, institution, organization and other places of work, and that, according to section 2(6), “a trade union should be formed on a sectoral, territorial and other basis of the occupational nature”. According to section 2(7), “trade unions are entitled to form primary trade unions at the enterprises, institutions and other places of work”, and “nation-wide trade union organizations and associations (federations) … regional, district, town trade union organizations and associations, as well as trade union organizations and associations and the enterprises and institutions”. The Committee understands that section 2(9) refers to trade unions and not primary trade unions, which are regulated under section 3(9) and indeed require 15 members for their establishment. The Committee further notes that section 2(9) refers expressly to “trade unions”, that is trade unions established on a sectoral, industrial, occupational and other levels pursuant to section 2(6) and not to “confederations of trade unions”. The Committee considers that the minimum requirement of 100 workers to establish unions by branch of activity, occupation or for various occupations is too high and should be reduced. The Committee therefore once again requests the Government to provide information with its next report on the measures taken or envisaged to amend section 2(9) of the Law on trade unions so as to lower the minimum trade union membership requirement and, in the meantime, to indicate the impact of this provision on the establishment of trade unions at the branch or sectoral levels, including information on the number of such trade unions and their respective membership.

Labour Code. The Committee had previously noted section 49(5) of the Code providing that, after the warning strike, the parties shall participate in the amicable settlement procedures pursuant to the Labour Code. The Committee had noted, however, that the Labour Code did not provide for such a procedure and requested the Government to give consideration to appropriate mechanisms of conciliation, mediation or voluntary arbitration instead. The Committee notes that, according to the Government, amicable settlement procedures are provided for in section 48 of the Code. The Committee notes that, under this section, such procedures involve: (1) a written notice of commencement of the amicable procedure reflecting the grounds of dispute and claims by one party; (2) a review of the notice by the other party and its reply; and (3) written decision by the representatives of the parties, which would become a part of the existing contract of employment. If no agreement has been reached within 14 days, the “other party is entitled to apply to court or arbitration” (section 48(5)). The Committee considers that the legislation could establish specific mechanisms to facilitate dispute settlement between the parties. Such procedures could involve a neutral and independent third party, in whom the parties have confidence, and who could facilitate breaking a stalemate which the parties are unable to resolve themselves. Noting that in its report the Government recognizes the need to develop mechanisms of conciliation and mediation to help reduce the incidence of disputes, the Committee requests the Government to indicate the concrete measures taken to that end.

With regard to section 48(5) of the Code, according to which, if an agreement is not reached within 14 days, one of the parties is entitled to submit the dispute to the court or arbitration, the Committee had recalled that a provision which permitted either party unilaterally to submit the dispute for compulsory arbitration effectively undermined the right of workers to call a strike. The Committee requested the Government to take the necessary measures to amend this provision so as to ensure that recourse to arbitration is limited only to situations where the right to strike can be restricted or banned, that is in: (1) essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); (2) the public services only for public servants exercising authority in the name of the State; or (3) in the event of an acute national emergency. The Committee notes the Government’s indication that recourse to the court of arbitration is not compulsory and an employee can declare a strike regardless of whether an appeal was filed or not. The Committee understands that, under section 48(5), the results of the arbitration (or court) procedure are compulsory and would therefore render meaningless the right to strike. The Committee therefore reiterates its previous request and asks the Government to indicate measures taken or envisaged to amend section 48(5) of the Code.

The Committee had also noted section 49(8) of the Code, which provided that a strike could not continue for more than 90 calendar days. The Committee notes that, in the Government’s opinion, this provision is in conformity with the Convention, as the latter does not provide for the right to hold strikes of unlimited duration. With regard to the duration of the strike, the Committee considers that a legislation limiting duration of the strike to 90 days seriously undermines one of the essential means through which workers and their organizations may promote and defend their economic and social interests. The Committee considers that the right to strike should not be restricted though predetermined limitation on the duration imposed by the legislation and requests the Government to take the necessary measures to repeal this provision. The Government may wish to consider, however, establishing a system of negotiated minimum services when dealing with a strike in non-essential services, which due to its extent and duration endangers the normal living conditions of the population.

The Committee had further requested the Government to amend section 51(2) of the Code, which prohibited strikes in sectors where “work is impossible to suspend due to the technological mode of work”. Instead of prohibition of strikes in such services, the Committee suggested establishing a system of minimum services. The Committee notes the Government’s indication that section 51(2) sets the minimum services requirement. The Committee points out, however, that this provision refers to the prohibition of strikes, without any reference to the system of minimum services and conditions thereof. With regard to the minimum service, the Committee recalls that such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be 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. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 161). The Committee therefore once again requests the Government to amend section 51(2) of the Code taking into account the above principle and to indicate measures taken or envisaged in this respect.

Finally, the Committee had requested the Government to amend section 51(4) and (5) of the Code providing that a strike by employees informed about termination of their contract before the dispute arises is illegal and that, if the right to strike arises before the termination of the time-based contract, the strike is considered illegal after the expiration of the term of the contract. The Committee notes that the Government confirms that after the termination of the labour contract the strike is considered illegal and indicates that there is no need for an amendment of the Code in this regard. The Committee draws the Government’s attention to the situations (mentioned above) when the right to strike can be restricted or prohibited. It notes furthermore that the prohibition imposed on workers in section 51(4) and (5) would run counter to the workers’ right to go on sympathy and protest strikes, which, according to the Government’s indication, are legal under the national legislation. The Committee therefore requests the Government to take the necessary measures in order to amend section 51(4) and (5) so as to bring it in line with the above principle and to indicate measures taken or envisaged n this respect.