Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Armenia (Ratification: 2006)

The Committee notes the observations of the Republican Union of Employers of Armenia (RUEA) and of the Confederation of Trade Unions of Armenia (CTUA) transmitted with the Government’s report, which refer to the issues raised by the Committee below. The Committee further notes the CTUA observations received on 30 September 2020 referring to the issues raised by the Committee below and to the application of the Convention in practice. The Committee requests the Government to provide its comments thereon.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to take the necessary measures to amend the Constitution and the Law on Trade Unions so as to ensure that the following categories of workers could establish and join organizations of their own choosing: (i) employees of the Prosecutor’s Office, judges and members of the Constitutional Court; (ii) civilians employed by the police and security service; (iii) self-employed workers; (iv) those working in liberal professions; and (v) workers in the informal economy. The Committee notes the Government’s indication that constitutional amendments were adopted on 6 December 2015. The Committee notes with interest that pursuant to article 45, paragraph 1, of the amended Constitution everyone has the right to freedom of association, including the right to establish and join trade union organizations.

The Committee further notes the Government’s indication that while the issue of amending the Law on Trade Unions will be discussed with the social partners, the right of civilian personnel in the police and security services to join trade unions is not restricted by section 6 of the Law on Trade Unions, by the Law on the Police Service or by the Law on the Service in the National Security Bodies. The Committee notes, however, that it stems from section 6 of the Law on Trade Unions, as amended in 2018, that only those with employment contracts can be members of a trade union and that pursuant to paragraph 3 of the same section, employees of the armed forces, police, national security, prosecutor's office, as well as judges, including judges of the Constitutional Court, cannot be members of a trade union organization. The Committee once again recalls that all workers, without distinction whatsoever, should have the right to establish and join organizations of their own choosing. It further recalls that the only authorized exceptions concern members of the police and the armed forces. It considers, however, that civilians employed in such services should be granted the right to establish and join organizations to further and defend their interests. The Committee therefore urges the Government to take the necessary measures to amend the Law on Trade Unions to ensure that employees of the Prosecutor’s Office, judges (including of the Constitutional Court), civilians employed by the police and security services, self-employed workers, those working in liberal professions, and workers in the informal economy can establish and join organizations for furthering and defending their interests. It requests the Government to provide information on all progress made in this respect.

Minimum membership requirement. The Committee recalls that it had previously requested the Government to amend section 4 of the Law on Employers’ Unions, 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); and to also amend section 2 of the Law on Trade Unions, setting out similar prerequisites for federations of trade unions at the territorial, sector and national levels, so as to lower the required minimum membership requirements. The Committee had considered that the minimum membership requirements as set out in the above legislative provisions 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 organization per territory or a particular sector in the territory. The Committee notes the Government’s indication that the Ministry of Labour and Social Issues has received draft amendments to the Law on Trade Unions and the Law on Employers' Unions. Recalling that it has been raising the issue of minimum membership requirement for the last ten years, the Committee expects that, in consultation with the social partners, both the Law on Trade Unions and the Law on Employers’ Unions will be amended in the near future so as to lower the minimum membership requirements and to ensure that more than one organization can be established at various levels. The Committee requests the Government to provide information on the developments in this regard.

Article 3. Right of organizations to organize their administration and activities in full freedom. The Committee recalls that it had previously requested the Government to amend:

• -sections 13(2)(1) and 14 of the Law on Employers’ Unions, which regulate in detail matters that should be decided upon by organizations themselves (such as the obligatory use of the words “employers’ union” for all employers’ organizations and “Armenia” for a national organization and the rights and responsibilities of the congress of an employers’ organization);
• -section 74(1) of the Labour Code, which requires a vote by two-thirds of an organization’s (enterprise’s) employees to declare a strike (or a vote by two thirds of employees of the subdivision if a strike is declared by a subdivision of an organization, as the case may be), so as to ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level; and
• -section 77(2) of the Labour Code, according to which, minimum services are determined by the corresponding state and local self-governance entities, so as to ensure that social partners are able to participate in the definition of what constitutes a minimum service.

The Committee takes note of the Government’s indication that in its view, sections 13(2)(1) and 14 of the Law on Employers’ Unions are not inconsistent with Article 3 of the Convention and do not limit the right of the employers' unions to independently draft their regulations or by-laws, freely elect their representatives and organize their administration and activities. Recalling that the fundamental notion of Article 3 of Convention No. 87 is that workers and employers may decide for themselves the rules which should govern the administration of their organizations, the Committee once again requests the Government to consider amending the above-mentioned provisions in consultation with the social partners to ensure that only formal requirements are laid down by the national legislation with regard to the functioning of organizations.

The Committee further notes the Government’s indication that the Labour Code is currently being reviewed to determine whether its above-mentioned sections should be amended. The Government informs, in particular, that it is suggested to amend section 74(1) of the Labour Code so as to require a favourable vote by the majority of employees who have participated in the closed ballot to call a strike if at least two-thirds of the total number of the employees of an organization/undertaking (or its subdivision) have participated in the ballot. The Government indicates that the question of acceptable quorum will be further discussed with the social partners. As regards section 77(2) of the Labour Code, the Committee notes that the Government’s indication that a new proposal for amendments contains reference to the negotiation of minimum services between employers and workers’ representatives. While welcoming the proposed amendments, the Committee recalls that the observance of a quorum of two-thirds of the total number of employees may also be difficult to reach and could restrict the right to strike in practice. It therefore requests the Government to ensure that the quorum and majority required for voting on a strike as well as to call a strike are fixed at a reasonable level. The Committee requests the Government to provide information on the developments regarding the amendment of the Labour Code.

The Committee encourages the Government to pursue its efforts in addressing the issues raised above with the assistance of the ILO and in consultation with the social partners.