Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Bélarus (Ratification: 1956)

The Committee notes the information provided by the Government on the measures taken to implement the recommendations of the Commission of Inquiry and the discussion that took place in the Conference Committee on the Application of Standards in June 2009. The Committee further notes the comments made by the International Trade Union Confederation (ITUC) and the Congress of Democratic Trade Unions (CDTU) on the application of the Convention in law and in practice in communications dated 26 and 28 August 2009, respectively.

The Committee also takes note of the seminar on the implementation of the Commission of Inquiry’s recommendations organized jointly by the ILO and the Government of Belarus in January 2009 and welcomes the plan of action to implement the recommendations of the Commission of Inquiry subsequently adopted by the tripartite National Council on Labour and Social Issues (NCLSI). The Committee further notes with interest that, pursuant to the plan of action, the Council for the Improvement of Legislation in the Social and Labour Sphere (“the Council”) evolved into a tripartite body where trade unions could raise their concerns and that the Council’s composition now included three representatives of the CDTU.

Article 2 of the Convention. The Committee recalls that it had previously noted with regret the absence of action by the Government to register trade union organizations, the registration of which had been requested by the ILO supervisory bodies (i.e. those primary-level organizations that were the subject of the complaint before the Commission of Inquiry, as well as organizations of the Radio and Electronic Workers’ Union (REWU) in Mogilev, Gomel, Smolevichi and Rechitsa and its primary trade union at “Avtopark No. 1”; two regional organizations of the Belarusian Free Trade Union (BFTU) in Mogilev and Baranovichi; and the Belarusian Trade Union of Individual Entrepreneurs “Razam”, a partner organization of the CDTU.

The Committee takes note of the Government’s indication that at its sitting of 30 April 2009 the Council discussed the issue of trade union registration and reached the following decisions, agreed upon by all members of the Council:

–           The Council noted registration of the primary REWU organizations in Smolevichi and Rechitsa.

–           The primary trade union of the Belarus Independent Trade Union (BITU) at the “Belshina” enterprise could not be registered due to the absence of confirmation of its legal address. The Council recommended to the administration of the enterprise, the Confederation of Industrialists and Entrepreneurs (Employers) (CIE(E)), the BITU, the CDTU and the local executive body to find a solution to the question of legal address in this case.

–           The Council took note of the information provided by a Ministry of Justice representative that no request for registration was submitted by the BFTU regional organization in Baranovichi.

–           The Council noted the reasons for denial of registration of the BFTU regional organization in Mogilev and “Razam” union.

–           In the Council’s opinion, refusals to register the REWU territorial structures in Gomel and Mogilev were justified because their 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 Council noted that the abovementioned grounds for refusal were not applicable to the REWU primary trade union at “Avtopark No. 1” as all its members were employed at the same enterprise.

The Committee notes with interest the registration of the primary REWU organizations in Smolevichi and Rechitsa. It further notes with interest that, following the Council’s decision, suitable premises for the legal address of the “Belshina” enterprise union were found and that this organization was re-registered in October 2009. The Committee observes that at its sitting of 26 November 2009, the Council once again discussed the issue of registration of the “Razam” union. The Committee requests the Government to indicate the outcome of the discussion. It encourages the Government to continue its close cooperation with the social partners in addressing the difficulties with registration in practice. Regretting that no information has been provided by the Government on the number of registered organizations and those denied registration during the reporting year, the Committee requests the Government to provide this information with its next report.

The Committee notes the Government’s indication that a REWU representative present at the sitting argued that the common interest of the members of the Gomel and Mogilev territorial organizations lay in the fact that they were all employed workers. This view was rejected by the Council’s members, who concluded that the refusal to register these organizations did not restrict the right of unions to freely determine their own structures and activities.

The Committee notes the CDTU’s view that despite the specific cases mentioned above, no real progress had been achieved with regard to trade union registration. Firstly, there had been no clear and unambiguous instructions issued by the Government to employers and registering bodies to register the unions mentioned in the recommendations of the Commission of Inquiry. Only some of the unions succeeded in getting legal address, the largest number of the organizations had to terminate their existence. Secondly, referring to the Council’s decision of 30 April 2009, the CDTU confirms that the tripartite body reviewed the refusals to register the REWU territorial structures in Gomel and Mogilev, “Razam” union and the BFTU regional organizations in Baranovichi and Mogilev. With regard to the latter two, the CDTU indicates that the Council limited itself by stating the fact that there were no organizations left to be registered; those primary organizations mentioned in the ILO recommendations no longer existed.

The Committee recalls that it had previously noted with regret that the requirement of legal address continued to raise difficulties with the registration of trade unions in practice and requested the Government to take the necessary measures to immediately amend Presidential Decree No. 2 of 1999 so as to ensure that workers and employers may form organizations of their own choosing without previous authorization. In this regard, the Committee notes the CDTU’s indication that the legal address requirement continues to hinder the establishment and functioning of trade unions.

The Committee notes that, according to the information provided by the Government, the Council adopted a number of measures intended to resolve problems arising from the implementation of the national legislation in practice and discussed approaches to developing legislation on trade unions on the basis of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Council took note of the explanation provided by a representative of the Ministry of Justice that the 10 per cent requirement was not applicable to union organizational structures, including primary trade unions. Pursuant to the Council’s request, the Ministry of Justice informed the local authorities of the need for strict adherence to this approach. The Committee notes the copy of this instruction forwarded by the Government. The Government further indicates that the Council’s members were requested to provide their proposals for the further development of legislation on trade unions by 1 July 2009. The Committee notes the Government’s indication that the issue of legislation on trade union registration was discussed at the Council’s meeting on 26 November 2009. The Committee requests the Government to indicate the outcome of the discussion.

The Committee notes with regret that, while the Government refers to continued work on developing legislation on trade unions, it has given no precise indication as to the steps taken to amend Decree No. 2, its rules and regulations, in particular, as regards the legal address requirement – a requirement which the Commission of Inquiry had observed gave rise in practice to arbitrary obstacles in the way of workers’ right to organize (see Trade union rights in Belarus, para. 591 et seq.). While observing that the Council was able to successfully resolve the legal address problem for the BITU primary trade union at “Belshina” enterprise, the Committee notes that this very case demonstrates that the legal address requirement as applied in the country continues to be an obstacle to the registration of trade unions. Furthermore, while welcoming the Ministry of Justice’s instruction requesting the registering bodies to ensure that the 10 per cent minimum membership was only required to form an autonomous union at the enterprise level, the Committee recalls that, since the issuance of the Decree, it has been expressing its concern over the effect of this requirement on the right to organize in large enterprises. It further recalls that on more than one occasion the Government referred to its intention to amend Decree No. 2. The Committee therefore once again urges the Government to take the necessary measures to amend without delay Presidential Decree No. 2 as concerns trade union registration in consultation with the social partners so as to ensure that the right to organize is effectively guaranteed. It requests the Government to indicate the progress made in this respect.

Articles 3, 5 and 6. The Committee recalls that in its previous observation it expressed its concern at the allegations of repeated refusals to authorize the BITU and the REWU to hold pickets and meetings and requested the Government to conduct independent investigations into these allegations and to bring the attention of the relevant authorities to the right of workers to participate in peaceful demonstrations to defend their occupational interests. The Committee notes with regret that no information has been provided by the Government in this respect. The Committee notes with concern from the CDTU’s communication that 15 requests to hold pickets were allegedly denied. Recalling that protests are protected by the principles of freedom of association and that public meetings and demonstrations should not be arbitrarily refused, the Committee recalls the conclusions of the Commission of Inquiry in this regard (see Trade union rights in Belarus, paras 625–627) and once again requests the Government to indicate the measures taken to investigate the alleged cases of refusals to hold pickets and meetings and to bring the attention of the relevant authorities to the right of workers to participate in peaceful demonstrations to defend their occupational interests.

The Committee also once again requests the Government to indicate the measures taken to ensure that National Bank employees may have recourse to industrial action without penalty.

The Committee recalls that for a number of years it has been asking the Government to amend the Law on Mass Activities, sections 388, 390, 392 and 399 of the Labour Code, and Decree No. 24 concerning the use of foreign gratuitous aid. The Committee notes with regret that aside from the general statement to the effect that an agreement has been reached by the members of the Council that any legislation on trade unions should be developed on the basis of Conventions Nos 87 and 98 and that the members of the Council had until 1 July 2009 to submit their proposals in this regard, there were no concrete proposals to amend the abovementioned pieces of legislation. Recalling that the abovementioned legislative provisions are not in conformity with the right of workers to organize their activities and programmes free from interference by the public authorities and their amendment had been requested by the Commission of Inquiry over five years ago, the Committee reiterates its previous requests and asks the Government to indicate concrete measures taken in this respect.

The Committee welcomes the continued commitment to social dialogue expressed by the Government and, like the Conference Committee on the Application of Standards at its last discussion in June 2009, encourages the Government to redouble its efforts to ensure full freedom of association in close cooperation with all the social partners and with the assistance of the ILO. It expresses the firm hope that the Government and the social partners will continue the cooperation within the framework of the tripartite Council so as to ensure that full freedom of association is effectively guaranteed in law and in practice.

The Committee requests the Government to respond to the observations made by the ITUC.