Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Fédération de Russie (Ratification: 1956)

Autre commentaire sur C098

Observation

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The Committee recalls that it had previously requested the Government to provide its observations on the comments made by the International Trade Union Confederation (ITUC), the Russian Labour Confederation (KTR) and the Seafarers’ Union of Russia (RPSM) alleging numerous violations of trade union rights in practice, including acts of anti-union discrimination and interference by employers in trade union internal affairs, as well as ineffective mechanisms of protection against such violations. The Committee notes that similar allegations have been submitted by these organizations in 2011. The Committee notes that an ILO mission visited the country in October 2011, in order to discuss a complaint pending before the Committee on Freedom of Association with all interested parties. The Committee also notes the Government’s report submitted in 2011.

The Committee further notes the comments made by the ITUC in a communication dated 31 July 2012 alleging new violations of the Convention in practice and referring in particular, to cases of anti-union discrimination, interference by employers in trade union internal affairs and refusal to bargain collectively. It requests the Government to provide its observations thereon.

Articles 1–3 of the Convention. The Committee had previously noted relevant provisions of the Labour Code, Criminal Code and Code of Administrative Offences providing for sanctions which could be imposed on employers found guilty of anti-union discrimination, as well as sanctions imposed for acts of interference by workers’ or employers’ organizations or their agents in each other’s affairs, particularly in the establishing, functioning and administration of the organizations. Referring, however, to the allegations of ineffective mechanisms of protection against acts of anti-union discrimination and interference by employers in trade union internal affairs submitted by the ITUC, the Committee requested the Government to provide information on the application of these legislative provisions in practice and to indicate the number of complaints of anti-union discrimination and acts of interference submitted, investigated and prosecuted within the last two years, as well as on the number of persons punished and the concrete sanctions imposed. The Committee notes that in its 2011 report, the Government once again reiterated the information it had previously provided describing the relevant applicable legislative provisions and once again stressed that the legislation contains appropriate penalties for offences concerning non-compliance with the labour legislation. The Government further indicates that there have been no recent court rulings dealing with complaints lodged by trade unions alleging anti-union discrimination.

The Committee notes, in this respect, the information contained in the report of the abovementioned mission. It notes, in particular, that according to the KTR despite the fact that the law provides for the prohibition of discrimination, protection, especially against acts of anti-union discrimination, is virtually non-existent in practice and that the bodies whose roles should be to protect trade union rights are not effective. The KTR representatives explained that the system of protection of labour rights involved three bodies: the Prosecutor’s Office, courts and the labour inspectorate. The Prosecutor Office’s mandate is to deal with the supervision of the application of the legislation and allegations of violations of human rights. However, according to the KTR, it often refuses to deal with the alleged violations of trade union rights considering that such violations fall outside its sphere of competence and should rather be brought to the attention of labour inspectors. Yet, the KTR informs that the labour inspectorate’s position was that trade union rights are outside the scope of the labour law; thus, it was not competent to deal with the alleged violations of trade union rights. The trade unions were therefore referred to courts. According to the KTR, in the case of anti-union discrimination, this became particularly difficult as such cases were very difficult to prove; even if discrimination is established by the court, the Prosecutor’s Office does not pursue the cases against employers, who refuse to reinstate or compensate a worker who had been subjected to anti-union discrimination; while the legislation provides for administrative and criminal responsibility, in practice, violations of trade union rights are not punished. The KTR representatives explained that administrative responsibility can only be engaged within two months after the lodging of a complaint; in such case, an investigation is carried out but it usually takes over two months. According to the KTR there are no cases where an employer or an official has been found criminally responsible for violating trade union rights.

The Committee further notes that representatives of the State Labour Inspectorate (Rostrud), competent to deal with violations of labour legislation, including alleged cases of discrimination, in general, and anti-union discrimination, in particular, confirmed that it is extremely difficult to prove cases of discrimination in court. They added that trade unions therefore most often file complaints with Rostrud; however, employers, having sufficient means and resources to appeal the decisions of labour inspectors in court do not hesitate to do so. They confirmed that, in practice, if a complaint is lodged with the court, the labour inspection cannot intervene. With regard to the application of penalties, Rostrud officials considered that in general, the fines are very small, to the point that some enterprises preferred to pay fines than to comply with the labour legislation.

The Committee notes the concluding remarks of the mission, which considered that further action is needed to strengthen the protection against violations of freedom of association both in law, and in practice, and that better knowledge of available procedures and further clarification of the practices would help both the social partners and the different state bodies to navigate in a context where responsibilities are not always clear. This applies in particular to the relationship between Rostrud, the Prosecutor’s Office and the courts. The Committee notes that a proposal for addressing, among others, the abovementioned matters has been drafted by two trade union centres in the country – the KTR and the Federation of Independent Trade Unions of Russia (FNPR) – and that the Government and employers’ representatives agreed that it should be examined in the framework of the Russian Tripartite Commission (RTK). The proposal refers to the need to draft specific legislative provisions with a view to render protection against violations of trade union rights, in general, and anti-union discrimination, in particular, more effective, and suggests to create a body with a specific mandate to examine cases of violations of trade union rights, including anti-union discrimination (such a mandate can also be undertaken by an existing body). The proposal also calls for training of relevant bodies and courts on freedom of association. The Committee requests the Government to provide information on the action taken to consider and make progress on the KTR–FNPR proposal, including the plans for ensuring the application of Articles 1 to 3 of the Convention in practice. In this respect, the Committee reminds the Government that it can avail itself of the technical cooperation of the Office if it so wishes.

Article 4. Parties to collective bargaining. The Committee had previously requested the Government to amend section 31 of the Labour Code so as to ensure that it is clear that it is only in the event where there are no trade unions at the workplace that an authorization to bargain collectively can be conferred to other representative bodies. The Committee regrets that no information has been provided by the Government. It is therefore bound to reiterate its previous request.

Compulsory arbitration. The Committee recalls that it had previously noted the Government’s indication that pursuant to sections 402–404 of the Labour Code, labour arbitration can only be established upon agreement of both parties to the dispute, who also elect the arbitrators, and that the only exception to this rule is set out by section 404 (part 7) of the code. The Committee had noted that this provision referred to section 413 (parts 1 and 2) of the code, dealing with illegal strikes, and thereby imposed compulsory arbitration not only in essential services in the strict sense of the term, but also in other services determined by federal laws. The Committee notes that in its 2011 report, the Government indicates that together with the social partners it had drafted amendments to the Labour Code with a view to improve and increase efficiency of procedures for settling collective labour disputes. The Committee notes that the Labour Code was amended in November 2011. It understands, however, that the abovementioned provision of section 413 remained unchanged. The Committee recalls that recourse to compulsory arbitration in cases where the parties do not reach an agreement is generally permissible only in the context of essential services in the strict sense of the term or in the case of civil servants exercising authority in the name of the State. Noting the Government’s statement that in order to achieve compliance with international labour standards, the labour legislation is under constant review in the framework of the RTK, the Committee once again requests the Government to take the necessary measures to amend the relevant sections of the Labour Code so as to ensure the application of the abovementioned principle and to indicate measures taken or envisaged in this respect.