Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the Government’s first report.

The Committee notes the provisions of the Constitution of the Republic of Armenia (1995), Labour Code (2004), as amended in 2010, the Law on Employers’ Organizations (2007) and the Law on the State Registration of Legal Entities (2001). It further notes the Law on Trade Unions (2000) as amended on 24 October 2006, which the Committee will examine once the translation thereof is available.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization. The Committee notes that according to article 28 of the Constitution, freedom of association, including the right to form and join trade unions, may be restricted in a manner prescribed by law for employees of the Prosecutor’s Office, as well as judges and members of the Constitutional Court. Recalling that pursuant to Article 2 of the Convention, these categories of workers should enjoy the right to form and join organizations for the purpose of furthering and defending their occupational and economic interests, the Committee requests the Government to indicate whether employees of the Prosecutor’s Office, as well as judges and members of the Constitutional Court can establish and join organizations of their own choosing and provide a copy of the relevant legislative texts.

The Committee notes section 4(1) and (2) of the Law on Employers’ Organizations, providing for the number of employers required to form employers’ organizations at the national level (over half of employers’ organizations operating at the sectoral and territorial levels), sectoral level (over half of employers’ organizations operating at the territorial levels) and territorial level (majority of employers in a particular administrative territory or employers’ organizations from different sectors in a particular administrative territory). The Committee recalls that the minimum membership requirement 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 considers that the minimum membership requirements as set out in section 4 of the Law are too high given that they would appear to ensure that in fact there is only one national level organization, one organization per sector and one territorial level employers’ organization per territory or a particular sector in the territory. In this respect, the Committee notes that several provisions of the Law expressly refer to the Republican Employers’ Union. The Committee therefore requests the Government to take the necessary measures in order to amend the Law on Employers’ Organizations so as to lower the minimum membership requirements set for establishing employers’ organizations at the national, sectoral and territorial levels and to ensure that more than one organization can be established at various levels. It requests the Government to provide, in its next report, information on the measures taken or envisaged in this respect.

The Committee notes that pursuant to section 12 of the Law on Employers’ Organizations, referring to section 16 of the Law on State Registration of Legal Entities, the state registration of an organization may be denied in cases of violation of the legislation or inconstancy with the procedure of establishment of legal entities. It appears that in such cases, the registration procedure (which could take up to 30 days) would have to be recommenced. The Committee requests the Government to consider amending section 16 of the Law on State Registration of Legal Entities so as to provide to employers’ (and workers’ organizations, if appropriate), seeking registration, adequate time to rectify any difficulties instead of obliging them to redo the procedure.

Article 3. Right of organizations to draw up their constitutions and rules and to organize their administration in full freedom. The Committee notes section 13(2)(1) of the Law on Employers’ Organizations setting out requirements with regard to the name of an organization (the obligatory use of the words “employers’ union” for all employers’ organizations and “Armenia” for a national organization). The Committee notes section 14 of the Law setting out in detail the rights and responsibilities of the congress of an employers’ organization. The Committee considers that these provisions regulate in detail matters that should be decided upon by organizations themselves. The Committee therefore requests the Government to consider amending these provisions so as to ensure that only formal requirements are laid down by the national legislation with regard to charters of organizations.

Right to strike. The Committee notes section 74(1) of the Labour Code regulating the declaration of a strike. The Committee notes that a vote by two‑thirds of an organization’s (enterprise’s) employees is required to declare a strike. If a strike is declared by a subdivision of an organization, a vote by two‑thirds of employees of that subdivision is required, but if such a strike hampers the activities of other subdivisions, the strike should be approved by two‑thirds of employees of the subdivision, which may not be less than half of the total number of employees of an organization. The Committee considers that the requirement of a decision by over half of all the workers involved in order to declare a strike is excessive. The Committee recalls in this respect, that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee therefore requests the Government to take the necessary measures in order to amend section 74 of the Labour Code so as to lower the required majority and to ensure that account is taken only of the votes cast.

The Committee further notes section 77(2) of the Labour Code providing that minimum services are determined by the corresponding state and local self‑governance entities. In the view of the Committee, minimum 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, op. cit., paragraph 161). The Committee requests the Government to take the necessary measures to amend section 77(2) of the Labour Code so as to ensure that the parties are able to participate in the definition of what constitutes a minimum service.

The Committee requests the Government to indicate in its next report all measures taken or envisaged to amend sections 74(1) and 77(2) of the Labour Code so as to bring them into conformity with the Convention taking into account the principles above.

Article 4. Dissolution of organizations. The Committee notes section 20 of the Law on Employers’ Organizations providing for liquidation and restructuring of employers’ organizations. The Committee requests the Government to clarify the meaning of paragraph 3 of this section, according to which “restructuring of an employers’ organization shall not be allowed”. The Committee further requests the Government to provide concrete examples of circumstances where the property of a liquidated organization could be rendered to the State, pursuant to section 20(4) of the Law.