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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Belarus (Ratification: 1956)

The Committee notes the observations of the International Trade Union Confederation (ITUC) and of the Belarusian Congress of Democratic Trade Unions (BKDP) received on 16 and 30 September 2020, respectively, and examined by the Committee below together with the Government’s reply thereon.

Follow-up to the recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

Civil liberties and trade union rights. The Committee notes the ITUC and BKDP allegations of extreme violence to repress peaceful protests and strikes, and detention, imprisonment and torture of workers while in custody following the presidential election in August 2020. The Committee notes that in its report, the Government indicates that the elections held in August 2020 were the most competitive and emotional in terms of public perception and reaction in the history of the State. The Government further indicates that following the vote counting, the political tensions that were fuelled from the outside resulted in a series of protests and events that were organized and held in violation of current legislation and aimed at destabilising the country. The Government points out that the exercise of rights and freedoms, including freedom of assembly, meetings, street processions, demonstrations and picketing, must be peaceful, respect the law of the land and not lead to violations of the law, the rights and legitimate interests of others, and threaten public and national security. The Government further points out that protest actions by some citizens to express their disagreement with the results of the presidential elections were purely political in nature and were organized without regard to the legislation establishing the procedure for their conduct and were not always peaceful. In the course of these actions, numerous offences were recorded; these included acts of resistance to the legitimate demands of law enforcement officers, associated with the manifestation of aggression, use of violence, damage to official transport, blocking the movement of vehicles, damage to infrastructure facilities. The Government indicates that the majority of persons referred to by the BKDP had been held administratively liable for organizing and/or actively participating in illegal protests or calling for participation in such protests. The Government considers that holding persons accountable for illegal acts cannot and should not be regarded as persecution of workers and trade unionists for the exercise of their civil rights and freedoms, including the rights to participate in sanctioned peaceful protests and lawful strikes. The status of a worker or trade union leader does not create additional advantages or immunity.

The Committee observes the statement by the UN High Commissioner for Human Rights at the Intersessional meeting of the Human Rights Council on the situation in Belarus on 4 December 2020, in which she pointed out that the monitoring and analysis of demonstrations since 9 August 2020 indicate that participants were overwhelmingly peaceful. The Committee expresses its deep concern over the serious allegations submitted by the ITUC and BKDP and the continued deterioration of the situation of human rights in the country, particularly with respect to the right of peaceful assembly, as noted by the UN High Commission for Human Rights at the most recent above-mentioned meeting. The Committee recalls that peaceful participation in strikes or demonstrations should not give rise to arrest or detention. No one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike or protest. The Commission recalls the International Labour Conference 1970 resolution concerning trade union rights and their relation to civil liberties, which emphasises that the rights conferred upon workers’ and employers’ organizations must be based on respect for civil liberties, as their absence removes all meaning from the concept of trade union rights. Among those liberties essential for the normal exercise of trade union rights are freedom of opinion and expression, freedom of assembly, freedom from arbitrary arrest and detention and the right to a fair trial by an independent and impartial tribunal. The Committee refers to Recommendation 8 of the Commission of Inquiry on Belarus, which considered that adequate protection or even immunity against administrative detention should be guaranteed to trade union officials in the performance of their duties or when exercising their civil liberties (freedom of speech, freedom of assembly, etc.). The Committee urges the Government to take all necessary measures to implement this recommendation of the Commission of Inquiry, to prevent the occurrence of human rights violations and ensure full respect for workers’ rights and freedoms. The Committee further urges the Government to take measures for the release of all of trade unionists who remain in detention and the dropping of all charges related to participation in peaceful protests and industrial actions. The Committee also requests the Government to supply copies of the relevant court decisions upholding detention and imprisonment of workers and trade unionists and to provide a list of the affected persons.

Regarding the reported cases of violent mistreatment of workers participating in such protests, the Committee, deeply regretting that the Government provides no information in this regard, recalls that it is the responsibility of the Government to ensure a climate free from violence, threat or pressure against peacefully protesting workers. The Committee urges the Government to investigate without delay any alleged instances of intimidation or physical violence through an independent judicial inquiry, in order to shed light on the facts and circumstances surrounding these acts, and to identify those responsible, punish the guilty parties and thus prevent the repetition of similar events. The Committee requests the Government to provide information on all measures taken to this end. Further in this respect, the Committee, with reference to the recommendations of the Commission of Inquiry, stresses the need to ensure impartial and independent judiciary and justice administration in general in order to guarantee that investigations into these grave allegations are truly independent, neutral, objective and impartial.

The Committee recalls that it in its previous comment it noted that activities aimed at giving effect to the recommendations of the Commission of Inquiry continued in the country in collaboration with the ILO. In this respect, the Committee noted that a training course on international labour standards for judges, lawyers and legal educators took place in Minsk in June 2017 and that a tripartite conference “Tripartism and Social Dialogue in the World of Work” was held in Minsk on 27 February 2019. The Committee recalls that it had previously noted that one of the outcomes of a tripartite activity on dispute resolution held in 2016 was the common understanding of the need to continue working together towards building a strong and efficient system of dispute resolution, which could handle labour disputes involving individual, collective and trade union matters. The Committee noted with regret the BKDP’s indication that the work on developing such a mechanism has been neglected completely.  The Committee once again requests the Government to provide its comments thereon and invites it to continue to take advantage of ILO technical assistance in this regard.

Article 2 of the Convention. Right to establish workers’ organizations. The Committee recalls that in its previous observations, it had urged the Government to consider, within the framework of the tripartite Council for the Improvement of Legislation in the Social and Labour Sphere (hereinafter, tripartite Council), the measures necessary to ensure that the matter of legal address ceases to be an obstacle to the registration of trade unions in practice. The Committee recalls that it requested the Government to provide its comments on the allegations of the BKDP and the ITUC of cases of refusal to register trade union structures of the Free Trade Union of Belarus (SPB) and of the Belarusian Union of Radio and Electronics Workers (REP union) in Orsha and Bobruisk. The Committee notes the Government’s indication that the requirement to provide confirmation of legal address is not an obstacle to the registration of trade unions and that there were no cases of refusal to register trade unions or (associations of trade unions in 2019 and the first nine months of 2020. With regard to the refusal to register a REP primary trade union in Bobruisk, the Government confirms that on 5 July 2019, the Bobruisk city executive committee decided to refuse the registration of the primary trade union because its members were not bound by common interests by virtue of the nature of their work as required by section 1 of the Law on Trade Unions. The Government points out that the relevance and the validity of this requirement was confirmed at a meeting of the tripartite Council of 30 April 2009. Thus, according to the Government, the steps taken by the REP union to establish the so-called city primary organization, uniting citizens without association with any organization, industry or profession, did not meet the requirements of the Law on Trade Unions. Additional grounds for the decision to deny registration were the absence of a decision by the authorized trade union body to create an organizational structure and other shortcomings in the documents submitted for the registration. The decision of the Bobruisk city executive committee was not appealed in court. The Committee notes that a similar explanation is provided by the Government regarding the refusal to register a primary trade union in Orsha. The Government points out that a refusal to register does not amount to a ban on the establishment of a trade union or its organizational structure as once all of the shortcomings have been remedied, the documents for the state registration can be resubmitted. The Committee recalls that it had previously taken note of the decision regarding the requirement of section 1 of the Law on Trade Unions, agreed upon by all members of the tripartite Council’s sitting of 30 April 2009.

Regarding the Committee’s previous request to discuss the issue of registration of trade unions by the tripartite Council, the Committee notes the Government’s indication that the possibility of implementing the Committee’s proposal may be considered when the tripartite Council resumes its work once the epidemiological situation in the country has improved. The Government points out, however, that the comments of the Committee of Experts are publicly available and that members of the tripartite Council can freely consult them and, if they deem it necessary, put the consideration of the Committee’s comments on the agenda of the tripartite Council. The Government reiterates that the agenda for meetings is set on the basis of proposals from the parties and organizations represented on the Council, taking into account the relevance of the issues raised, and with the agreement of the Council’s members. To that end, the information should be submitted to the Council’s secretariat (the Ministry of Labour and Social Protection) with an explanation as to why that particular issue is problematic and merits consideration by the Council. The Government indicates that in 2016–20, there had been no submissions for discussion of issues relating to the legal address requirement.  The Committee expects the Government, as a member of the tripartite Council, to submit the Committee’s comments on the issue of registration for the Council’s consideration at one of its meetings as soon as possible. The Committee requests the Government to inform it of the outcome of the discussion.

The Committee observes with concern that during his televised meeting with the chairperson of the Federation of Trade Unions of Belarus (FPB) President Lukashenko urged that trade unions be set up at all private enterprises by the end of 2020 under the threat of liquidation of those private companies which did not organize trade unions upon FPB demand. In his remarks, he underlined the State position supporting the FPB trade unions. The Committee recalls that the principal objective of Convention No. 87 is to protect the autonomy and independence of workers’ and employers’ organizations in relation to the public authorities, both in their establishment and in their functioning and dissolution (see the 2012 General Survey on the fundamental Conventions, paragraph 55). The Committee considers that the spirit of Convention No. 87 calls for impartial treatment of all trade union organizations by the authorities, even if they criticize the social or economic policies of national or regional executives, as well as avoidance of reprisals for pursuing legitimate trade union activities. The issuance of a statement by a high public authority that would favour one union over another or even use its authority to create unions within a designated trade union federation undermines the right of workers to establish and join organisations of their own choosing.

The Committee recalls that the 1952 International Labour Conference resolution concerning the independence of the trade union movement emphasizes that a stable, free and independent trade union movement is an essential condition for good industrial relations and that it is essential for the trade union movement in each country to preserve its freedom and independence so as to be in a position to carry forward its economic and social mission irrespective of political changes. The resolution recalls that governments, in seeking the cooperation of trade unions to carry out their economic and social policies, should recognize that the value of this cooperation rests to a large extent on the freedom and independence of the trade union movement as an essential factor in promoting social advancement and should not attempt to transform the trade union movement into an instrument for the pursuit of political aims, nor should they attempt to interfere with the normal functions of a trade union movement.

The Committee urges the Government to refrain from showing favouritism towards any given trade union and to put an immediate stop to the interference in the establishment of trade union organizations. The Committee requests the Government to provide information on all measures taken to that end.

Articles 3, 5 and 6. Right of workers’ organizations, including federations and confederations, to organize their activities. Legislation. The Committee recalls that the Commission of Inquiry had requested the Government to amend Presidential Decree No. 24 of 28 November 2003 on Receiving and Using Foreign Gratuitous Aid. The Committee further recalls that it had considered that the amendments should be directed at abolishing the sanctions imposed on trade unions (liquidation of an organization) for a single violation of the Decree and at widening the scope of activities for which foreign financial assistance can be used so as to include events organized by trade unions. The Committee recalls that Decree No. 24 had been superseded by Presidential Decree No. 5 of 31 August 2015 on Foreign Gratuitous Aid and the ensuing Regulations on the Procedures for the Receipt, Recording, Registration and Use of Foreign Gratuitous Aid, the Monitoring of its Receipt and Intended Use, and the Registration of Humanitarian Programmes. The Committee notes the Government’s indication that the national legislation does not prohibit trade unions from receiving gratuitous foreign aid, including from international trade union organizations. At the same time, the legislation defines the objectives and conditions for the use of foreign gratuitous aid and stipulates that such aid must be registered in accordance with the established procedure, which, according to the Government, is not complicated and rapid. The Government indicates that Decree No. 5 has been replaced by Decree No. 3 of 25 May 2020. The Committee notes with regret that just as previously under Decrees Nos 24 and 5, the foreign gratuitous aid cannot be used to organize or hold assemblies, rallies, street marches, demonstrations, pickets or strikes, or to produce or distribute campaign materials, hold seminars or carry out other forms of activities aimed at “political and mass propaganda work among the population”, and that a single violation of the Regulation bears the sanction of possible liquidation of the organization. The Committee notes the Government’s indication in this respect that the ban on receiving and using foreign donations for purposes involving political and mass propaganda work among the population is conditioned by the national security interests, the need to exclude opportunities for destructive influence and pressure from external forces (foreign states, international organizations and associations, foundations, etc.) aimed at destabilising the socio-political and socio-economic situation in the country. The Government emphasizes that this procedure applies to all legal entities, including trade unions, and further points out that there are no cases of trade unions being denied foreign gratuitous aid and that there are no cases of trade unions being liquidated for violation of the procedure for its use. Further in this respect, the Government considers that the issue of procedure established for receiving foreign gratuitous aid is unjustifiably linked to Articles 5 and 6 of the Convention.

While taking note of the above, the Committee observes that the broad expression “political and mass propaganda work among the population” when applied to trade unions may hinder the exercise of their rights as it is inevitable and sometimes normal for trade unions to take a stand on questions having political aspects that affect their socio-economic interests, as well as on purely economic or social questions. As to the link with Articles 5 and 6 of the Convention, the Committee draws the Government’s attention to paragraph 624 of the report of the Commission of Inquiry where it was observed that the right recognized in these Articles “implies the right to benefit from the relations that may be established with an international workers’ or employers’ organization. Legislation which prohibits the acceptance by a national trade union or employers’ organization of financial assistance from an international workers’ or employers’ organization, unless approved by the Government, and provides for the banning of any organization where there is evidence that it has received such assistance, is not in conformity with this right. Although there were no specific allegations as to the practical application of [the] Decree, the Commission reiterates the conclusions made by [the] supervisory bodies that the previous authorization required for foreign gratuitous aid and the restricted use for such aid […] is incompatible with the right of workers’ and employers’ organizations to organize their own activities and to benefit from assistance that might be provided by international workers’ and employers’ organizations”.

Further in this connection, the Committee recalls that the Commission of Inquiry had requested the Government to amend the Law on Mass Activities. The Committee recalls that under the Law, which establishes a procedure for mass events, the application to hold an event must be made to the local executive and administrative body. While the decision of that body can be appealed in court, the Law does not set out clear grounds on which a request may be denied. A trade union that violates the procedure for organizing and holding mass events may, in the case of serious damage or substantial harm to the rights and legal interests of other citizens and organizations, be liquidated for a single violation. In this context, “violation” includes a temporary cessation of organizational activity or the disruption of traffic, death or physical injury to one or more individuals, or damage exceeding 10,000 times a value to be established on the date of the event. The Committee had requested the Government to amend the legislation, in particular by abolishing the sanctions imposed on trade unions or trade unionists for a single violation of the Law and setting out clear grounds for the denial of requests to hold trade union mass events, bearing in mind that any such restriction should be in conformity with freedom of association principles.

In its previous observation, the Committee noted the Government’s indication that the Law on Mass Activities was amended on 26 January 2019. The Government indicated that the revised Act sets out a number of additional measures and requirements that need to be complied with by the organizers in order to ensure the law and order and public safety during mass events. The Committee noted with deep regret that the Law on Mass Activities was not amended along the lines of its previous requests. It also noted with concern the BKDP’s allegation that the amendments to the Law were not discussed with the social partners. The Committee also noted the BKDP’s indication that among the novelties in the Law is the notification procedure for street action, which applies to mass events to be organized at “permanent places” designated as such by local authorities. Thus, according to the BKDP, the format of an event is imposed on the organizers, as rallies and pickets are possible in the squares designated as “permanent places”, but processions and demonstrations are not. The Committee requested the Government to provide its comments thereon.

The Committee notes the Government’s indication that because a violation of the procedure for organizing and/or holding a mass event may entail a serious threat to public order, the national legislation establishes certain liability, including liquidation of an organization for a single violation if the mass event results in serious damage or substantial harm to the rights and legal interests of other citizens and organizations. The Government points out that the above should not be interpreted as a deterrent to the exercise by citizens and trade unions of their right to freedom of peaceful assembly. The Government adds that the decision to terminate activities of an organization may only be taken by the Supreme Court. The Government indicates that to date, there have been no decisions on the liquidation of trade unions for violation of the procedure for organizing and conducting mass events.

With regard to the information provided by the BKDP that the introduction of notification procedures for the organization and holding of mass events in permanent locations imposes on the organizers the format of the event, the Government indicates that the organizers have the right to determine the format of the planned event themselves. Thus, if the planned format allows the event to be held in one of the specially designated permanent locations, the organizers may use the notification procedure, if not - the organizers need to receive a permission to hold the mass event. The above is aimed not at restricting the organizers in choosing the format of the event, but rather at eliminating excessive interference of state bodies in the process and thus at creating additional guarantees for the realization by citizens of the right to assembly. At the same time, certain restrictions on individual rights and freedoms are a means of legal protection of public order and public safety, morality, public health and the rights and freedoms of other persons. Thus, the Government considers that the legislation in force is in conformity with the principles of freedom of association and freedom of assembly.

While taking note of the above, the Committee recalls that it had previously noted with regret the adoption by the Council of Ministers (pursuant to the Law on Mass Activities) of the Regulation on the procedure of payment for services provided by the internal affairs authorities in respect of protection of public order, expenses related to medical care and cleaning after holding a mass event (Ordinance No. 49, which entered into force on 26 January 2019). The Committee noted that according to the Regulation, once a mass event is authorized, the organizer must conclude contracts with the relevant territory internal affairs bodies, health services facilities and cleaning facilities regarding, respectively, protection of public order, medical and cleaning services. The Regulation provides for the fees in relation to protection of public services as follows: three base units – for an event with the participation of up to ten people; 25 base units – for an event with the participation of 11 to 100 people; 150 base units – for an event with the participation of 101 to 1,000 people; 250 base units – for an event with the participation of more than 1,000 people. The Committee notes that the current base unit is set at BYN27 (US$11). If the event is to take place in an area which is not a “permanent designated area,” the above fees are to be multiplied by a coefficient of 1.5. In addition to the above fees, the Regulation provides for the expenses of the specialized bodies (medical and cleaning services) that must be paid by the organizer of the event. According to the Regulation, these shall include: salary of employees engaged in the provision of services taking into account their category, number and time spent in the mass event; mandatory insurance contributions; the cost of supplies and materials, including medicine, medical products, detergents; indirect expenses of specialized bodies; taxes, fees, other obligatory payments to the republican and local budgets provided by law. The Committee notes with deep regret that the Regulation was amended on 3 April 2020 by the Ordinance of the Council of Ministers No. 196 so as to provide that the above-mentioned various contracts have to be concluded by an organizer prior to filing a request for authorization to hold an event. The Committee notes with deep concern that according to the most recent observations of the BKDP, the new amendment deprives trade unions of the possibility to carry out their public activities.

Reading these provisions alongside those forbidding the use of foreign gratuitous aid for the conduct of mass events, the Committee considers that the capacity for carrying out mass actions would appear to be extremely limited if not non-existent in practice. The Committee notes with regret that at this stage, the Government considers it not advisable to change the existing procedure for receiving and using foreign gratuitous aid. The Committee therefore once again urges the Government, in consultation with the social partners, to amend the Law on Mass Activities and the accompanying Regulation in the very near future and requests the Government to provide information on all measures taken in this respect as soon as possible. The Committee recalls that the amendments should be directed at abolishing the sanctions imposed on trade unions or trade unionists for a single violation of the respective legislation; at setting out clear grounds for the denial of requests to hold trade union mass events, bearing in mind that any such restriction should be in conformity with freedom of association principles; and at widening the scope of activities for which foreign financial assistance can be used. Furthermore, considering that the right to organize public meetings and demonstrations constitutes an important aspect of trade union rights, the Committee requests the Government to take the necessary steps in order to repeal the Ordinance of the Council of Ministers No. 49, as amended, which makes the exercise of this right nearly impossible in practice. The Committee requests the Government to provide information on all measures taken to that end and invites the Government to avail itself of ILO technical assistance in this respect.

Practice. The Committee recalls that it has been noting the allegations of repeated refusals to authorize the BKDP, the BNP and the REP union to hold demonstrations and public meetings for a number of years and in this respect, it had previously urged the Government, in working together with the above-mentioned organizations, to investigate all cases of refusals to authorize the holding of demonstrations and meetings, and to bring to the attention of the relevant authorities the right of workers to participate in peaceful demonstrations and meetings to defend their occupational interests. In this respect, the Committee had noted that according to the Government, in 2016–19, the following were the most common reasons to deny an authorization to hold a mass event: the application did not contain the information required by the law; another mass event was being held in the same place at the same time; the event was to take place in a location not allowed for such a purpose; the documents submitted did not indicate the precise location of the event; and the event was announced in the mass media prior to receiving authorization. The Government indicated that when a permission to hold a mass event was not granted, the organizers, having rectified the shortcomings, could re-submit their application. Finally, a decision prohibiting the holding of a mass event may be appealed in court. The Government referred to several examples where the permission to hold such events was granted to the BKDP. While taking note of this information, the Committee noted the 2019 BKDP’s allegations that executive authorities in Minsk, Mogilev, Vitebsk, Zhlobin, Borisov, Gomel, Brest and Novopolotsk refused to grant a permission to hold mass events and requested the Government to provide its detailed comments thereon. The Committee notes the Government’s indication that the decision to allow or prohibit a mass event is made taking into account the date, place, time, number of participants, weather conditions and a number of other circumstances directly affecting public order and safety and that both the rights of citizens to freedom of association and freedom of assembly and the principle of the priority of the public interest, according to which, the exercise of rights should not undermine public benefit and safety, damage the environment, historical and cultural values, and infringe on the rights and interests of other persons, are taken into account. The Committee further notes the detailed information provided by the Government in reply to the 2019 BKDP allegations. The Committee notes, in particular, that with the exception of one case where a permission to hold a mass event was granted, others were denied on account of the following: the event was to take place in a location not allowed for such a purpose; the failure to provide information on the source of funding and information on contracts for medical care and cleaning of the territory; the application did not contain the information required by the law; and another mass event was being held in the same place at the same time. The Committee observes from the information provided by the Government that it would indeed appear that the application of the legislation in practice hinders the right of workers to carry out their activities without interference. In view of the continuing difficulties experienced by the BKDP unions, the Committee urges the Government to engage with the social partners, including in the framework of the tripartite Council, with a view to addressing and finding practical solutions to the concerns raised by the unions in respect of organizing and holding mass events. The Committee requests the Government to provide information on concrete steps taken in this respect and the outcome of such discussions. The Committee further requests the Government to provide statistical information on the requests submitted and permissions granted and denied, segregated by the trade union centre affiliation.

The Committee recalls the 2019 BKDP and ITUC allegations regarding the cases of Messrs Fedynich and Komlik, leaders of the REP union, found guilty, in 2018, of tax evasion and use of foreign funds without officially registering them with the authorities as per the legislation in force. They were sentenced to four years of suspended imprisonment, restriction of movement, a ban on holding senior positions for five years and a fine of BYN47,560 (over US$22,500 at that time). The Committee noted that the particulars of these cases were being considered by the Committee on Freedom of Association in the framework of its examination of the measures taken by the Government to implement the recommendations of the Commission of Inquiry. In this connection, the Committee also noted the BKDP allegation that the equipment seized during searches in the REP union and BNP premises had not been returned and requested the Government to provide information thereon.

The Committee notes the Government’s indication that according to the Investigative Committee, computer equipment, mobile phones and other equipment seized during searches of the REP union and BNP administrative premises were returned to their official representatives in October 2019, except for the hard drives and flash drives containing information on financial and economic transactions of these organizations. The data storage devices have not been returned and are kept together with the corresponding material in the criminal case of tax evasion by the leaders of the REP union Messrs Fedynich and Komlik. The Government indicates that the information contained therein will be used to conduct further investigations into possible similar crimes committed by these persons in the period from 2012 to 2018 with the assistance of the BNP employees. In this connection, the Minsk City Investigation Committee Department has appointed an additional tax audit of the REP union, which is yet to be initiated. Upon the completion of the tax audit, the leading criminal authority will take a decision on the future fate of the seized information storage devices. While noting this information, the Committee observes that the data contained in the storage devices could have been copied and returned to the union thereby avoiding the situation where a union is deprived of administrative and financial information necessary for the conduct of its activities. The Committee requests the Government to provide information on the outcome of a new investigation.

Right to strike. The Committee recalls that it had been requesting the Government for a number of years to amend the following sections of the Labour Code as regards the exercise of the right to strike: sections 388(3) and 393, so as to ensure that no legislative limitations can be imposed on the peaceful exercise of the right to strike in the interest of rights and freedoms of other persons (except for cases of acute national crisis, or for public servants exercising authority in the name of the state, or essential services in the strict sense of the term, i.e. only those, the interruption of which, would endanger the life, personal safety or health of the whole or part of the population); 388(4) so as to ensure that national workers’ organizations may receive assistance, including financial assistance, from international workers’ organizations, even when the purpose is to assist in the exercise of freely chosen industrial action; 390, by repealing the requirement of the notification of strike duration; and 392, so as to ensure that the final determination concerning the minimum service to be provided in the event of disagreement between the parties is made by an independent body and to further ensure that minimum services are not required in all undertakings but only in essential services, public services of fundamental importance, situations in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population, or to ensure the safe operation of necessary facilities.

The Committee notes the Government’s indication that the right to strike is not expressly provided for in the Instrument of the ILO; rather, the ILO supervisory bodies derive the right to strike from Article 3 of Convention No. 87, despite the fact that the legality of this interpretation has been questioned by the Employers’ Group on several occasions and that under Article 37 of the ILO Constitution, any question or dispute concerning the interpretation of conventions shall be referred to the International Court of Justice, the only body which has the right to interpret Conventions. The Committee further notes that the Government refers to the national constitutional and legislative provisions enshrining the right to strike. It further notes the Government’s indication that the exercise of the right to strike requires the existence of a collective labour dispute and that national legislation does not provide for the possibility of organizing and holding political strikes. The law may impose restrictions on the exercise of the right to strike to the extent necessary in the interests of the national security, public order, public health and the rights and freedoms of others. The Government points out that pursuant to section 393 of the Labour Code, in the event of a real threat to national security, public order, public health, the rights and freedoms of other persons and in other cases provided for by law, the President of the Republic of Belarus has the right to postpone or suspend a strike, but not for more than three months. The Government further points out that legal provisions containing certain restrictions or conditions on the exercise of the right to strike are due to the very nature of the right. According to the Government, the right to strike is fundamentally different from other human rights due to a number of specific following features: it is not an end in itself, but a tool to achieve an end, a way to protect the interests of workers; the right to strike is not inherent and inalienable as it may be restricted; it must be balanced with the rights of other human rights when the health and safety of others are affected or essential services are impacted; and while it is an individual right, the possibility of its realization depends on the agreement of other parties. For the reasons expressed above, the Government disagrees with the calls of the Committee for the amendment of the legislation, in particular as regards section 388(4) of the Labour Code.

At the outset and in reply to the Government’s general remarks, the Committee recalls that its opinions and recommendations derive their persuasive value from the legitimacy and rationality of the Committee’s work based on its impartiality, experience and expertise. The Committee’s technical role and moral authority is well recognized, particularly as it has been engaged in its supervisory task for more than 90 years, by virtue of its composition, independence and its working methods built on continuing dialogue with governments taking into account information provided by employers’ and workers’ organizations. This has been reflected in the incorporation of the Committee’s opinions and recommendations in national legislation, international instruments and court decisions. It is within this mandate that it has been dealing with the questions pertaining to the right to strike.

The Committee requests the Government to take measures to revise the above-mentioned legislative provisions, which negatively affect the right of workers’ organizations to organize their activities in full freedom, in consultation with the social partners, and to provide information on all measures taken or envisaged to that end.

The Committee recalls that it had previously requested the Government to provide its reply to the BKDP allegations of violation of the right to strike in practice. The Committee notes the Government’s indication that a strike is a measure of last resort to which workers represented by a trade union have the right to resort if all other constructive ways of resolving a collective labour dispute (conciliation, mediation and arbitration) have been exhausted. The Government points out that the need to comply with the procedure for resolving collective labour disputes should not be considered as a practice contradicting provisions of the Convention regarding the right of workers’ organizations to freely exercise their activities. The Committee notes with regret that while the Government confirms that the decision by members of the SPB at an enterprise in Polotsk to call a rolling strike from 1 November to 31 December 2017 was declared illegal by the court, it does not indicate the reasons therefor.

The Committee notes with concern detailed allegations of numerous cases of arrests, detention of and fines imposed on trade unionists for having organized and participated in strikes following the August 2020 events. The Committee notes the Government’s indication that attempts to organize strikes at various enterprises were in no way connected with the resolution of collective labour disputes, as per the requirement set by the Labour Code; rather the purpose of these protests was to draw public attention to the civil position and political demands of some employees against the country’s leadership, without due regard to the interests of other members of the workforce who do not share the same political views, as well as the economic interests of enterprises and of the State. The Committee notes that pursuant to the definition of the word “strike” set out in section 388 (1) of the Labour Code, as referred to by the Government, strikes are permitted only in relation to a collective labour dispute. The Committee considers that strikes relating to the Government’s economic and social policies, including general strikes, are legitimate and therefore should not be regarded as purely political strikes, which are not covered by the principles of the Convention. In its view, trade unions and employers’ organizations responsible for defending socio-economic and occupational interests should be able to use, respectively, strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members. Moreover, noting that a democratic system is fundamental for the free exercise of trade union rights, the Committee considers that, in a situation in which they deem that they do not enjoy the fundamental liberties necessary to fulfil their mission, trade unions and employers’ organizations would be justified in calling for the recognition and exercise of these liberties and that such peaceful claims should be considered as lying within the framework of legitimate trade union activities, including in cases when such organizations have recourse to strikes (see the 2012 General Survey on the fundamental Conventions, paragraph 124). The Committee therefore further requests the Government to amend section 388(1) of the Labour Code, in consultation with the social partners, to ensure that workers can exercise their right to strike to defend their occupational and economic interests, which do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions. The Committee requests the Government to indicate all measures taken or envisaged to that end.

Consultations with the organizations of workers and employers. The Committee recalls that in its previous comment it had noted that the BKDP alleged lack of consultations in respect of the adoption of new pieces of legislation affecting rights and interest of workers. The Committee notes in this respect the Government’s indication that the development of draft legislation regulating social and labour issues is carried out with the direct involvement of the social partners. The obligation to consult the social partners and the procedure therefor are reflected in the tripartite General Agreement for 2019–21. In addition, and as a follow-up to the Law “On Normative Legal Acts “, a Regulation on the Procedure for Public Discussion of Draft Normative Legal Acts was approved by the Council of Ministers on 28 January 2019. The Regulation describes the procedures and means of public consultation with regard to legislative drafts. Furthermore, pursuant to Regulation of the Council of Ministers No. 193 of 14 February 2009, draft legislation affecting labour and socio-economic rights and interests of citizens is submitted to the FPB as the most representative organization of workers for possible comments and/or proposals. In addition, both the FPB and the BKDP are represented in the National Council on Labour and Social Issues (NCLSI), as well as in the tripartite Council. Both tripartite advisory bodies have certain functions with regard to draft legislation affecting social and labour issues. The Government indicates that it had consulted with trade unions and employers’ organizations with regard to the amendments to the Labour Code and that discussions in this regard were held at meetings of the NCLSI held on 28 June 2018 and 31 May 2019.

While taking note of this information, the Committee understands that the FPB, as an organization with a higher overall number of members, has preferential rights in the processes of consultation on legislation affecting rights and interest of workers. The Committee considers that both the number of members and independence from the authorities and employers’ organizations are essential elements for consideration in determining the representativeness of an organization. In light of the above-noted publicly expressed support by the State authorities at the highest level for the FPB, the Committee is bound to reiterate its previous comments made in 2007, which recalled the importance of ensuring an atmosphere in which trade union organizations, whether within or outside the traditional structure, are able to flourish in the country before establishing the notion of representativeness. The Committee therefore requests the Government to ensure that the BKDP and the FPB, as members of both the NCLSI and the tripartite Council, enjoy equal rights in consultations during the preparation of legislation and to that end to take the necessary measures to amend Regulation of the Council of Ministers No. 193. The Committee requests the Government to provide information on all steps taken in this regard. The Committee further once again requests the Government to take the necessary measures in order to further strengthen the role of the tripartite Council for the Improvement of Legislation in the Social and Labour Sphere, which should, as its title indicates, serve as a platform where consultations on the legislation affecting rights and interests of the social partners can take place.

Further in this respect, the Committee notes the Government’s indication that the tripartite Council was set up with the advice of the ILO to consider issues related to the implementation of the recommendations of the Commission of Inquiry as well as other issues that may arise between the Government and its social partners, including the consideration of complaints received from trade unions. The Committee welcomes the Government’s expressed readiness to either work to further improve the Council’s function or to create another structure. The Committee also notes that the Government also expresses its concern over the issue of representation at the Council and the willingness of the parties to accept the decisions that will be made within this tripartite body. The Government indicates, in particular, that in its experience, representatives of the BKDP are not prepared to support Council’s decisions that differ from the BKDP predetermined position or declare that they do not have the necessary authority to adopt a position of the Council. The Government indicates that it would like to count on the advice of the Office in this respect once the Council resumes its work, which has been temporarily suspended due to the epidemiological situation caused by the widespread of COVID-19. Taking all the above into account, the Committee expects that the Government will fully engage with the social partners, the ILO, as well as relevant national institutions and bodies, with a view to improving the functioning, procedures and the work of the tripartite Council aimed at enhancing its impact in addressing the issues stemming from the recommendations of the Commission of Inquiry and other ILO supervisory bodies.

The Committee considers that the current situation in Belarus remains far from ensuring full respect for freedom of association and the application of the provisions of the Convention. The Committee regrets to observe that the recent developments as examined above appear to indicate steps backward on some of the previously achieved progress in implementing the Commission of Inquiry’s recommendations. The Committee therefore urges the Government to pursue its efforts and expects that the Government, with the assistance of the ILO and in consultation with the social partners, will take the necessary steps to fully implement all outstanding recommendations without further delay.

In light of the situation described, the Committee is obliged to note that there has been no meaningful progress towards full implementation of the 2004 Commission of Inquiry recommendations, and notes with concern that the recent developments referred to in detail above would appear to indicate a retreat on the part of the Government from its obligations under the Convention.

[The Committee asks the Government to supply full particulars to the Conference at its 109th Session and to reply in full to the present comments in 2021.]