Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Tajikistan (Ratification: 1993)

Article 3 of the Convention. Right of organizations to organize their administration and activities and to formulate their programmes. The Committee notes that according to the Government’s report, the Law on social associations of 2007 is applicable to trade unions, whereas section 2 of that legislation states that this Law is not applicable to trade unions, the establishment and activities of which are regulated by a separate legislation. The Committee requests the Government to provide clarifications in this regard.

The Committee notes that sections 25 and 34 of the Law on social association provide that the registering authorities have a right to send its representatives to participate in activities (events) organized by social associations. The Committee recalls that freedom of association implies that workers’ and employers’ organizations should have the right to organize their activities in full freedom without interference from the authorities. The Committee considers that problems of compatibility with the Convention arise when the legislation authorizes public authorities to be present at events organized by trade unions and therefore requests the Government to repeal the corresponding provisions of sections 25 and 34 of the Law on social associations. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee notes that according to section 211(2) of the Labour Code of 1997, a decision to declare a strike should be taken by a meeting of workers or of an appropriate workers’ representative body. Such a decision should be adopted by not less than two-thirds of those present at the meeting (representative body) or two-thirds of the delegates to the conference of workers’ representatives, subject to a quorum of more than half of all members of the workforce (representative body) being present at the meeting (or two-thirds of delegates present at the conference). The Committee considers that while a requirement of a strike ballot does not, in principle, raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice; 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 be taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). In these circumstances, the Committee considers that while the quorum provided for by section 211(2) seems to be compatible with the freedom of association principles, the requirement that a decision to strike should be taken by two-thirds of those present at the meeting is excessive and limits the right to strike. The Committee therefore requests the Government to amend section 211(2) of the Labour Code, so as to lower this requirement and so as to ensure that account is taken only of the votes cast in determining the outcome of a strike ballot. The Committee requests the Government to indicate the measures taken or envisaged in this respect.

The Committee notes that section 211(3) of the Labour Code imposes the obligation to indicate, in the strike notice, its possible duration. The Committee requests the Government to indicate whether workers or their organizations can declare a strike for an indefinite period of time.

The Committee further notes that according to section 211(4) of the Labour Code, right to strike can be restricted in cases where this might endanger the life and health of individuals or the security and defence capacity of the State and that such restrictions are subject to the provisions of the legislation in force. While noting that restrictions of the right to strike seem to be limited to the essential services in the strict sense of the term, the Committee requests the Government to provide a list of services where the right to strike is restricted or prohibited and to indicate the relevant legislative provisions. Recalling that if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, the Committee requests the Government to indicate, in its next report, whether any such protection is given to workers deprived of their right to strike and to indicate the applicable legislative provisions.

The Committee notes that under section 160 of the Criminal Code, a violation of procedure for organizing and carrying out meetings, manifestations and pickets is sanctioned by a fine of up to 2,000 minimum salaries or of up to two years’ imprisonment. The Committee requests the Government to indicate whether trade unionists can be sanctioned under this provision for exercising legitimate trade union activities, such as strikes and meetings.