Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

1. 1137. The complaint is contained in a communication from the Federation of Trade Unions of Russia (FTU/R) dated 10 November 2009.
2. 1138. The Government sent its observations in communications dated 1 and 17 February 2010.
3. 1139. The Russian Federation has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 1140. By its communication dated 10 November 2009, the FTU/R submits a complaint against the Government of the Russian Federation on behalf of its affiliate, the Federal Air Traffic Controllers’ Union of Russia (FPAD of Russia).
2. 1141. The complainant explains that the FPAD of Russia was established on 1 November 1991. It represents 90 per cent of workers employed in the provision of air navigation services in the country. Members of the FPAD of Russia are mainly employed by the State Corporation of Russia for the Organization of Air Traffic. The FPAD of Russia has over three hundred primary and regional organizations. Its eight thousand members are air traffic controllers, personnel of the meteorological services and other technical staff. Its headquarters are situated in the enterprise’s main building (Leningradsky prospect 37/7, office 254). The premises were provided for the use by the FPAD of Russia executive committee and its primary organization pursuant to the agreement of 25 May 2007 between the General Director of the enterprise and the FPAD of Russia, free of charge and without limit of time (attached to the complaint). This agreement was concluded on the basis of section 377 of the Labour Code and clause 9.4.3 of the 2007–10 collective agreement.
3. 1142. The complainant alleges that on 9 September 2009, the Deputy General Director of the enterprise sent a letter to the FPAD of Russia primary organization, in which he advised that another office space has been allocated to the FPAD. The new office (29 square meters) is situated in a different building (Leningradsky prospect 37 A/1, office 5) and is to be shared with another primary trade union. The union was asked to move by 11 September 2009. In its reply, the FPAD of Russia stated that according to clause 2 of the agreement signed on 25 May 2007, the employer had made a commitment to grant the union an additional office of not less than 18 square meters; therefore, FPAD of Russia would accept the new office as an additional one. On 19 and 21 October 2009, the FPAD of Russia received further letters requesting that union to vacate the premises by 26 October 2009. The FPAD of Russia replied that the enterprise had no right to unilaterally denounce the commitments it had accepted under the agreement signed on 25 May 2007 and that the union could be deprived of its premises only pursuant to a judicial decision. The complainant organization provides copies of the abovementioned communications.
4. 1143. The complainant further alleges that on 26 October 2009, the management of the enterprise forbade the FPAD of Russia President, the chairperson of its primary organization and the staff of both organizations to enter the office of the FPAD of Russia and its primary trade union. Furthermore, electronic passes of the FPAD of Russia staff have been blocked and the security guards have been instructed by the General Director of the enterprise to deny them access to the union office. Due to the actions of the enterprise management, representatives of the FPAD of Russia and its primary trade union are denied access to the building of the corporation, where its 70 members work and where its trade union documents and seals, etc., are stored. The complainant indicates that the newly allocated office has only one phone number, has no fax equipment, no computers nor other technical facilities.
5. 1144. The complainant organizations considers that the enterprise has violated the agreement of 25 May 2007, the 2007–10 collective agreement and the agreement dated 19 May 2009 on the indexation of salaries and signing of a new collective agreement. The FTU/R further considers that the reason behind the management’s actions is numerous appeals made by the FPAD of Russia to the Office of the Public Prosecutor and courts. The complainant indicates that the FPAD of Russia primary organization took legal actions against the management of the enterprise in connection with the infringements of the 2007–10 collective agreement and the agreement dated 19 May 2009 on the indexation of salaries, as well as the infringements of provisions of the Labour Code concerning the right of a trade union to inform its members about its activities, illegal placing of video cameras at the workplaces, illegal orders on the commercial and official secrets and refusals to give employees information and documentation with respect to their professional activities. The FPAD of Russia, on behalf of the members of its primary trade union organization, also lodged numerous complaints before the courts, almost all of which received favourable decisions. It indicates, in particular, that only during September–October 2009, the Moscow Office of the Public Prosecutor made three representations and issued one warning to the enterprise ordering to stop illegal actions in respect of the refusal to index wages, to give information and documentation to the employees concerning their work and the illegal placing of video cameras. So far, the decisions of the Public Prosecutor have been ignored.
6. 1145. The complainant indicates that with respect to the abovementioned infringements, the FPAD of Russia and its member organizations have also appealed to the President of the Russian Federation, the Minister of Transport, the Director of Federal Air Navigation Authority, as well as to the office of the Public Prosecutor and the State Labour Inspection. The complainant indicates that a special commission has been appointed by the Director of Federal Air Navigation Authority to examine all of the abovementioned cases of infringements.

B. The Government’s reply

1. 1146. By its communications dated 1 and 17 February 2010, the Government indicates that the Moscow branch of the State Labour Inspectorate has carried out an inspection to verify compliance with the labour legislation at the State Corporation for the Organization of Air Traffic and that the Ministry of Health and Social Development has met with the management of the corporation.
2. 1147. Regarding the issue of premises situated at Leningradsky prospect 37/7, office 254, where the FPAD of Russia and one of its 15 primary trade union organizations had their headquarters, it was established that under point 1.1 of its statutes, the FPAD of Russia is a national-level public association. According to section 377 of the Labour Code and point 9.4.3 of the collective agreement with the company, the employer is required to provide premises only to the elected body of primary union organizations representing employees. The Government explains that while on 25 October 2009, the employer suspended the right of access to the building and the office of the FPAD of Russia, it had allocated appropriate premises for the use by the elected body of the FPAD of Russia primary trade union and that representatives of the primary trade union have unrestricted access to the territory of the company.
3. 1148. On the basis of the findings of the Moscow State Labour Inspectorate, the managing director of the company was given a formal instruction to ensure that the measures are taken to rectify infringements of the labour legislation. Pursuant to this instruction, the company was required to index workers’ wages in accordance with section 134 of the Labour Code and to ensure that members of the primary union organization of workers employed by the company enjoyed unhindered access to the premises allocated to the union. The enterprise was required to inform the Moscow State Labour Inspectorate of all measures undertaken in accordance with this instruction within one month (by 25 February 2010). Under the terms of section 19 of the Administrative Offences Code, failure to implement the instruction is punishable by a fine and in the event of a substantive contraventions, the case may be referred to the court.
4. 1149. The Government indicates that before the above instruction was issued, on 20 November 2009, the Savelov district court in Moscow examined the complaint against the company lodged by workers of the FPAD, seeking a ruling that the employer’s action with regard to indexing wages was illegal and asking for compensation for moral damages. The Court established that at the time the claims were made, the union in question was engaged in negotiations with the employer on amendments to the collective agreement and indexation of wages, in accordance with the procedure laid down in the collective agreement. Because the negotiations were still on at the time the court had the case before it and because the procedure for amending the collective agreement had not been adhered to, the court did not examine the claim made by the union’s representatives on the basis of section 222(1) of the Code of Civil Procedure, as the parties had not used the out-of-court dispute settlement procedure available under the collective agreement.

C. The Committee’s conclusions

1. 1150. The Committee notes that the present case raises the issues of facilities to be afforded to workers’ representatives. It notes in particular that, the complainant in this case, the FTU/R, alleges that the officers of the FPAD, its affiliate, are denied access to the workplace of their members at the State Corporation of Russia for the Organization of Air Traffic and that in violation of the existing agreement, the employer ordered for the office of the FPAD of Russia and its primary organization to be moved to another, smaller place. The Committee notes the observations provided by the Government.
2. 1151. With regard to the issue of trade union premises, the Committee notes that the offices of both the national trade union FPAD of Russia and its primary trade union of workers of the corporation were located in the corporation’s main building pursuant to the agreement of 25 May 2007 concluded by the enterprise and the FPAD of Russia. The office was provided to both trade union entities free of charge and for the use without limit of time. However, as appears from the exchange of communications between the FPAD of Russia and the enterprise, in September–October 2009, referring to the business needs of the corporation, the management requested the FPAD of Russia and its primary trade union to vacate the office in the main building and move to an office it has allocated to the primary trade union in another building. The FPAD primary trade union’s premises are currently situated in the newly allocated office space. The Committee notes in this respect the Government’s indication that the new office was allocated pursuant to section 9.4.3 of the 2007–10 collective agreement and section 377 of the Labour Code, which provides for a general obligation on the employer to provide the enterprise primary trade union with an office space.
3. 1152. With regard to the provision by the enterprise of trade union premises, the Committee recalls Paragraph 9 of the Workers’ Representatives Recommendation (No. 143), according to which:
4. (1) Such facilities in the undertaking should be afforded to workers’ representatives as may be appropriate in order to enable them to carry out their functions promptly and efficiently.
5. (2) In this connection, account should be taken of the characteristics of the industrial relations system of the country and the needs, size and capabilities of the undertaking concerned.
6. (3) The granting of such facilities should not impair the efficient operation of the undertaking concerned.
7. 1153. It further underlines the need to strike a balance between two elements: (i) facilities in the undertaking should be such as to enable trade unions to carry out their functions promptly and efficiently and (ii) the granting of such facilities should not impair the efficient operation of the undertaking [see Case No. 2642 concerning the Russian Federation, 355th Report, paras 1171 and 1172]. The Committee therefore considers that the actions of the corporation did not infringe upon the above mentioned principle of freedom of association.
8. 1154. With regard to the access to the workplaces of trade union members, the Committee notes that according to the complainant, representatives of the FPAD of Russia and its primary trade union are denied access to the building of the corporation, where its 70 members work and where trade union documents and seals, etc., are stored. According to the Government, however, representatives of the primary trade union have unrestricted access to the territory of the company. The Committee further notes the Government’s indication that following an inspection carried out by the State Labour Inspectorate, the managing director of the company was given a formal instruction to ensure that members of the primary union organization of workers employed by the company enjoyed unhindered access to the premises allocated to the union. The Committee further notes that the management of the enterprise refers to article 4 of the Law on Transport Security, pursuant to which, access to the corporation can only be granted upon obtaining special passes.
9. 1155. The Committee recalls that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function and that trade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking. The granting of such facilities should not impair the efficient operation of the undertaking concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 1104–1105].
10. 1156. From the documents submitted by the complainant organization, the Committee understands that Mr Kovalev is the President of the FPAD of Russia and is also the chairperson of the FPAD of Russia primary trade union organization. The Committee therefore considers that he, as well as other determined representatives of the primary trade union organization, should be granted access to the workers in the undertaking, with due respect for the rights of property and management, so as to enable them to carry out their representation function. The Committee therefore requests the Government to bring the parties – the management of the corporation and the FPAD of Russia – together in order to facilitate their reaching an agreement in relation to the access to be provided to the representatives of the FPAD of Russia and its primary trade union, bearing in mind the principles above. It further requests the Government to ensure that the FPAD of Russia has indeed recuperated its documents, seals and other property from the office it had previously occupied. It requests the Government to keep it informed in this respect.
11. 1157. With regard to the question of indexation of wages as provided for in the collective agreement, the Committee notes from the Government’s reply that the Moscow State Labour Inspectorate has instructed the enterprise to index workers’ wages in accordance with section 134 of the Labour Code and report back on the measures taken in this respect by 25 February 2010. The Committee notes that pursuant to section 134 of the Labour Code, the enterprises other than those financed by the State budget shall index wages in accordance with the collective agreements in force. Recalling that collective agreements should be binding on the parties [see Digest, op. cit., para. 939], the Committee expects that the enterprise has complied with the Inspectorate’s instruction and requests the Government to keep it informed in this respect.