Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Armenia (RATIFICATION: 2003)

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The Committee notes the observations from the Confederation of Trade Unions of Armenia (CTUA) received on 1 September 2023 concerning issues addressed in the present comment. The Committee had previously requested the Government to provide its comments on observations from the CTUA received on 30 September 2020 regarding alleged violations of the Convention in practice. The Committee expects the Government to take all necessary actions to ensure full compliance with the Convention with respect to these alleged violations and to provide its detailed comments in this respect in its next report.

Legislative developments. The Committee notes that the Government informs that Law HO-160-N, On Amendments and Additions to the Labour Code of the Republic of Armenia, was adopted on 3 May 2023.

Article 3 of the Convention. Machinery for ensuring respect for the right to organize. The Committee welcomes new clause 6 of section 25 of the Labour Code according to which the representatives of employees have the right to appeal to the court against the decisions and actions of employers which violate employees’ rights. The Committee notes at the same time that the CTUA mentions that the draft law on Additions to the Code of Civil Procedure, by which the representatives of employees will be given the right to act as representatives in courts has not been circulated yet. TheCommittee requests the Government to take all the necessary measures so that the right recognized in clause 6 of section 25 of the Labour Code can be exercised in court. The Committee requests the Government to provide a copy of the Additions to the Code of Civil Procedure once adopted.

Article 4. Promotion of collective bargaining. The Committee had previously expected the Government to amend section 23 of the Labour Code according to which both trade unions and “workers’ representatives” enjoyed the right to negotiate collective agreements at the enterprise level. The Committee notes with satisfaction that section 23 has been amended by Law HO-160-N and that, as a result, “workers’ representatives” can only negotiate collective agreements in a determined enterprise in the absence of a trade union.

The Committee notes the amendment to section 45, “Collective agreements” paragraph 2 of the Labour Code according to which a party receiving notice of the desired collective bargaining is obliged to provide the other party its position on taking part in it within seven days pursuant to section 66. The Committee notes the observations from the CTUA that the amendment provides a deadline for expressing a position, but that trade unions do not have sufficient tools to invite employers to negotiate since there are no effective means set by the legislation to overcome a possible rejection. Recalling that the principle of negotiation in good faith, which is derived from Article 4 of the Convention, takes the form, in practice of certain obligations, namely recognizing representative organizations, endeavouring to reach agreement, and engaging in real and constructive negotiation (General Survey of 2012 on the fundamental Conventions, paragraph 208), the Committee requests the Government to give clarifications on the application of section 45(2) of Law HO-160-N and on the available avenues in case of a rejection to enter into negotiations with a representative trade union.

The Committee notes the amendments to paragraphs 1 and 2 of section 51 of the Labour Code, replacing the terms “registration” by “reckoning”, and “state authorized body” by “inspection body”, and the addition of paragraph 3 to the aforementioned section 51 as well as the addition of section 59.1. The Committee notes that paragraph 3 of section 51 states that the procedure for recording republican, branch and territorial collective agreements shall be defined by the Government. The Committee notes that section 59.1 of the Labour Code deals with the procedures relating to the reckoning of collective bargaining and the bringing into force of an organization’s collective bargaining agreement. The Committee notes the Government’s indication that with the amendments made to section 51 and 59.1 of the Labour Code, it is envisaged that the body exercising state control over labour legislation will also carry out the accounting of national, branch, territorial and organization collective agreements, and that these amendments will encourage workers’ representatives to undertake collective negotiations aimed at concluding collective agreements. Recalling that provisions whereby approval may be refused are only compatible if the agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (General Survey of 2012 on the fundamental Conventions, paragraph 201), the Committee requests the Government to clarify: (i) the nature of the inspection body mentioned in sections 51 and 59.1; and (ii) if the referred provisions of the Labour Code have any impact on the smooth registration of collective agreements.

The Committee had previously requested the government to amend sections 59(4) and 61(2) of the Labour Code, whereby if an enterprise is restructured or privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. The Committee notes with satisfaction that the sections have been amended, particularly to remove the stipulation in section 59(4) that a collective agreement is no longer valid upon reorganization of the organization, as well as the case provided for section 61(2) of this Code when an organization is privatized.

The Committee finally notes from the observations of the CTUA concerning section 3 of the Labour Code (Principles of the labour legislation) that clause 9 of paragraph 1 of this section mentions “freedom” rather than the word “right” to collective bargaining. The Committee requests the Government for clarification on the interpretation of this section.

Welcoming the mentioned amendments to the Labour Code,the Committee invites the Government to provide information on any further developments on the promotion and the protection of collective bargaining.

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The Committee notes the observations of the Confederation of Trade Unions of Armenia alleging violations of the Convention in practice received on 30 September 2020. The Committee requests the Government to provide its comments thereon.

Article 4 of the Convention. Collective bargaining. The Committee had previously noted that pursuant to sections 23, 25, 45, 55 and 56 of the Labour Code, both trade unions and “workers’ representatives” enjoyed the right to negotiate collective agreements at the enterprise level. Recalling that direct negotiation between the undertaking and its employees, bypassing representative organizations, where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted, the Committee had requested the Government to take the necessary measures to amend its legislation so as to bring it into conformity with the Convention. The Committee notes the Government’s explanation that for the purpose of collective bargaining, a trade union is entitled to represent all workers of an undertaking if this union represents over half of the company’s workers. A collective agreement signed by that union would apply to all workers of the enterprise in question. If a union represents less than half of all workers of an enterprise, it can only negotiate on behalf of its own members. In the absence of a trade union, the representation functions can be transferred to the relevant regional or sectoral trade union. Pursuant to section 23 of the Labour Code, if no trade union exists at an enterprise, or if the existing unions represent less than half of the employees of the undertaking, the staff meeting may elect other representatives. In the latter case, pursuant to section 56 of the Labour Code, the union which represents less than half of all workers of an enterprise bargains collectively through a joint representative body together with other elected representatives. The Government thus considers that there is no need to amend the Labour Code in this respect. The Committee recalls that, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and that negotiation between employers or their organizations and representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. The Committee emphasizes that where there exists a representative trade union and it is active within the enterprise or branch of activity concerned, the authorization for other workers’ representatives to bargain collectively not only weakens the position of the trade union, but also undermines ILO rights and principles on collective bargaining (see the 2012 General Survey on the fundamental Conventions, paragraphs 239–240). The Committee regrets that despite its numerous requests, section 23 of the Labour Code has not been amended. The Committee expects the Government to take immediate action to amend section 23 of the Labour Code and requests it to provide information on any progress made in this regard.

The Committee had previously noted that according to sections 59(4) and 61(2) of the Labour Code, if an enterprise is restructured or privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. Recalling that neither the restructuring nor the privatization of an enterprise should in itself automatically result in the extinction of all the obligations resulting from the collective agreement, and that the parties should in any case be in a position to advocate the application of relevant clauses such as those concerning severance pay, the Committee had requested the Government to amend these provisions accordingly. The Committee notes the Government’s indication that in case of a merger of two or more enterprises into one structure, maintaining a collective agreement would not be possible if all of the enterprises concerned had their own collective agreements, as each legal entity can have only one collective agreement. The Committee notes, on the one hand, that the situation described by the Government is only one of many possible situations covered by the above-mentioned provisions of the Labour Code, which deal with restructuring and privatization in general, and on the other, even in the situation referred to by the Government, a merger between two enterprises should not result in workers automatically losing all rights and guaranties obtained through collective bargaining. The Committee thus considers that before a new collective agreement can be negotiated and signed, the previous agreement shall remain in force.  The Committee therefore reiterates its previous request and asks the Government to provide information on the progress made in this respect.

Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements signed and in force in the country and to indicate the sectors and levels concerned as well as the number of workers covered.

The Committee reminds the Government that it can avail itself of the technical assistance of the Office.

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The Committee notes the Government’s report and will examine the application of the Convention in the country once the translation becomes available.

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Article 4 of the Convention. Collective bargaining. The Committee had previously noted that pursuant to sections 23, 25, 45, 55 and 56 of the Labour Code, both trade unions and “workers’ representatives” enjoyed the right to negotiate collective agreements at the enterprise level and requested the Government to amend its legislation so as to ensure that in cases where there is no trade union representing 50 per cent of the company’s workers, the existing unions are entitled to bargain collectively on behalf of their own members.

The Committee notes the Government’s explanation that for the purpose of collective bargaining, a trade union is entitled to represent all workers of an undertaking if this union represents over half of the company’s workers. A collective agreement signed by that union would apply to all workers of the enterprise in question. If a union represents less than half of all workers of an enterprise, it can only negotiate on behalf of its own members. In the absence of a trade union, the representation functions can be transferred to the relevant regional or sectoral trade union. The Committee notes, however, that pursuant to section 23 of the Labour Code, if no trade union exists at an enterprise, or if the existing unions represent less than half of the employees of the undertaking, the staff meeting may elect other representatives. The Committee notes what appears to be a contradiction between the wording of section 23 of the Labour Code and its application in practice, as explained by the Government. Recalling that direct negotiation between the undertaking and its employees, bypassing representative organizations, where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted, the Committee requests the Government to take the necessary measures to amend its legislation so as to bring it into conformity with the Convention, as well as the existing practice, as explained by the Government. It requests the Government to indicate all progress made in this respect.

The Committee had previously noted that according to section 59(4) and section 61(2) of the Labour Code, if an enterprise is restructured or privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. Recalling that neither the restructuring nor the privatization of an enterprise should in itself automatically result in the extinction of all the obligations resulting from the collective agreement, and that the parties should in any case be in a position to advocate the application of relevant clauses such as those concerning severance pay, the Committee had requested the Government to amend these provisions accordingly.

The Committee notes the Government’s indication that, following discussions with the social partners, and taking into account that in practice, new socio-labour guarantees can be established through collective bargaining with a new employer, a decision was made not to amend the Labour Code in this respect. The Committee nevertheless considers that before a new collective agreement can be negotiated and signed, the previous agreement shall remain in force. The Committee therefore reiterates its previous request and asks the Government to provide information on the progress made in this respect.

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The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 30 August 2013, which refer to matters already examined by the Committee.

The Committee had previously noted that under the legislation in force (sections 23, 25, 45, 55 and 56 of the Labour Code and section 16(2) of the Act on Trade Unions), both trade unions and “workers’ representatives” enjoyed the right to negotiate collective agreements at the enterprise level and requested the Government to clarify whether in cases where there is no trade union representing 50 per cent of the company’s workers, the existing minority unions are entitled to bargain collectively on behalf of their own members. The Committee notes that in its report, the Government indicates that both the trade union and the representatives elected by the staff meeting can represent the rights and interests of workers. It further notes the Government’s indication that in the absence of a trade union, or if the existing trade union does not unite more than half of the company’s workers, the staff meeting elects representatives. If those representatives are not elected, the functions of defending the representation and interests of workers may be transferred by the staff meeting to the appropriate branch or regional trade union. In that case, the staff meeting elects a representative who takes part in collective bargaining within the delegation of the branch or regional trade union. The Committee once again recalls that where there exist in the same undertaking both trade union representatives and elected representatives, the existence of elected representatives should not be used to undermine the position of the trade unions concerned. The Committee also recalls that direct negotiation between the undertaking and its employees, bypassing representative organizations, where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. The Committee therefore requests the Government to take the necessary measures to amend the above legislation in line with the principles above, so as to ensure that in cases where there is no trade union representing 50 per cent of the company’s workers, the existing minority unions are entitled to bargain collectively on behalf of their own members.

The Committee had previously noted that according to section 59(4) and section 61(2) of the Labour Code, if an enterprise is restructured or privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. Recalling that neither the restructuring nor the privatization of an enterprise should in itself automatically result in the extinction of all the obligations resulting from the collective agreement, and that the parties should in any case be in a position to advocate the application of relevant clauses such as those concerning severance pay, the Committee had requested the Government to amend these provisions accordingly. The Committee notes the Government’s indication that those abovementioned provisions will be discussed within the framework of the expected future changes that will be made to the Labour Code. The Committee reiterates its request and asks the Government to provide information on the progress made in this respect.

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The Committee notes the comments submitted with the 2012 Government report by the Confederation of Trade Unions of Armenia and by the Republican Union of Employers of Armenia on the application of the Convention, which mainly refer to matters already being examined by the Committee.

The Committee also notes the Government’s observations on the comments of the Republican Union of Employers of Armenia dated 1 August 2011 criticizing that the Act to amend and supplement the Labour Code had not been submitted to the Tripartite Republican Commission. The Committee notes in particular that the Government indicates that the draft was discussed at the Commission’s session of 29 September 2009, in which it was decided to grant the parties one week to submit their suggestions, and that the suggestions of the Confederation of Trade Unions of Armenia and of the Republican Union of Employers of Armenia were presented on 5 October 2009 in Notes Nos 01-05 and 50. Noting the recent comment of the Confederation of Trade Unions of Armenia reiterating that the abovementioned suggestions have not been discussed in the Tripartite Republican Commission, the Committee cannot reach any conclusion and can only generally recall the importance it attaches to the prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law.

The Committee takes due note of the Government’s reply confirming the legislative prohibition of acts of interference by section 26 of the Labour Code as amended (Article 2 of the Convention).

Article 4. Right to collective bargaining. In previous comments, the Committee had noted that section 7(7) of the Code provides that employment relations of civil servants as well as of the employees of the Central Bank of Armenia are regulated by the Labour Code, if not otherwise stipulated by the relevant legislation, and had requested the Government to specify the categories of workers not covered by the Code and indicate the legislative provisions granting them trade union and collective bargaining rights. The Committee notes that the Government indicates that, as a result of the adoption of the Act to amend and supplement the Labour Code of 24 June 2010, section 44 of the Labour Code now provides that its Part 2 (Collective Labour Relations) applies to the state and local autonomous bodies as well as to the workers of the Central Bank of Armenia, and does not apply to the labour relations involving the workers of special services, persons holding political, discretionary and civil posts. The Committee recalls that, pursuant to Article 6, only public servants who are engaged in the administration of the State can be excluded from the guarantees enshrined in the Convention. The Committee requests the Government to provide information on the meaning of the terms “special services” and “civil posts”, and on the categories of workers covered by those terms.

Promotion of collective bargaining. In its previous comment, the Committee had noted that, according to the Labour Code as amended: (i) in case of absence of trade unions in the company or if the existing trade union does not include more than half of the company’s workers, the staff meeting (conference) elects representatives (body) (section 23(2)); (ii) the existence of representatives (body) elected by the staff meeting (conference) must not prevent the implementation of the trade unions’ functions (section 23(3)); and (iii) the “workers’ representatives”, a term that includes both trade union delegates and elected representatives, enjoy the right to negotiate collectively and to sign collective agreements (section 25(1)(iv)) and are designated as the parties to the collective agreement (sections 45(1), 55(1) and 56). Furthermore, the Committee had noted that, according to section 16(2) of the Trade Union Act as amended, if the trade union does not represent more than half of the workers who have signed an employment contract with the employer, it can represent and defend only the interests of those employees who are members of this union. In this regard, the Committee recalled that, in accordance with the Workers’ Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), ratified by Armenia, appropriate measures are to be taken to ensure that, where there exist in the same undertaking both trade union representatives and elected representatives, the existence of elected representatives is not used to undermine the position of the trade unions concerned. The Committee also recalled that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted.

The Committee had requested the Government to confirm its understanding of the legislation in force as regards the interaction between minority unions and elected representatives. In the absence of any information provided by the Government in this regard, the Committee recalls the principles enunciated above and requests the Government to clarify whether, under the legislation in force, in cases where there is no trade union representing 50 per cent of the company’s workers, the existing minority unions are entitled to bargain collectively on behalf of their own members.

Duration of collective agreement. In its previous comments, the Committee had noted that, according to section 61(2) of the Labour Code, if an enterprise is privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. The Committee noted that, under section 59(4) of the Labour Code as amended, the same issue arises in the case of the restructuring of the enterprise. The Committee recalled that neither the restructuring nor the privatization of an enterprise should in itself automatically result in the extinction of all the obligations resulting from the collective agreement and that the parties should in any case be in a position to advocate the application of relevant clauses such as those concerning severance pay. The Committee welcomes the Government’s indication that the question of modification of the abovementioned provisions will be included in the draft Act to amend and supplement the Labour Code. The Committee therefore trusts that the Government will take the necessary measures to amend sections 59(4) and 61(2) of the Labour Code so as to guarantee the application of the abovementioned principleabovementioned principle.abovementioned principle.

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The Committee notes the observations submitted by the Confederation of Trade Unions of Armenia dated 9 August 2011 on the application of the Convention, which mainly refer to matters being examined by the Committee.

The Committee also notes the comments made by the Republican Union of Employers of Armenia dated 1 August 2011, criticizing in particular that, in violation of the Tripartite Republican Collective Agreement, the Act to amend and supplement the Labour Code has not been submitted to the Tripartite Republican Committee before adoption, and that in recent months such violations of the Tripartite Collective Agreement by the Government have become quite frequent and the tripartite working relations have deteriorated. Recalling the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law, the Committee requests the Government to provide its observations in this regard.

The Committee notes the adoption of the Act to amend and supplement the Labour Code on 24 June 2010. It draws the Government’s attention to the following shortcomings with respect to the application of the provisions of the Convention.

Article 2 of the Convention. Prohibition of acts of interference. The Committee notes that section 37(3) of the Labour Code, which prohibited to hinder employees from joining trade unions has been deleted. Considering that national legislation should contain specific provisions for an adequate protection of workers’ organizations from acts of interference by employers and their organizations (including acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations), the Committee requests the Government to indicate the provisions that guarantee such protection by providing for the prohibition of acts of anti-union interference and prescribing sufficiently dissuasive sanctions, and if need be, to amend the legislation accordingly.

Article 4. Right to collective bargaining. In previous comments, the Committee had noted that section 7(7) of the Code provides that employment relations of civil servants as well as of the employees of the Central Bank of Armenia are regulated by the Labour Code, if not otherwise stipulated by the relevant legislation, and had requested the Government to specify the categories of workers not covered by the Code and indicate the legislative provisions granting them trade union and collective bargaining rights. The Committee notes that the Government refers to the provisions of the Labour Code as amended, the Trade Union Act as amended and the Civil Service Act, which merely confirm the issue previously raised by the Committee. The Committee requests the Government to specify the extent to which the Labour Code provisions concerning collective bargaining apply to employees of the Central Bank of Armenia and to civil servants (based on the understanding that, pursuant to the Convention, only public servants who are engaged in the administration of the State can be excluded from the guarantees enshrined in the Convention), as well as the relevant legislative provisions granting them trade union and collective bargaining rights.

Promotion of collective bargaining. The Committee notes that, according to the Labour Code as amended: (i) in case of absence of trade unions in the company or if the existing trade union does not include more than half of the company’s workers, the staff meeting (conference) elects representatives (body) (section 23(2)); and (ii) the “workers’ representatives”, a term that includes both trade union delegates and elected representatives, enjoy the right to negotiate collectively and to sign collective agreements (section 25(1)(iv)) and are designated as the parties to the collective agreement (sections 45(1), 55(1) and 56). Furthermore, the Committee notes that, according to section 16(2) of the Trade Union Act as amended, if the trade union does not represent more than half of the workers who have signed an employment contract with the employer, it can represent and defend only the interests of those employees who are members of this union.

The Committee observes that section 23(3) of the Labour Code provides that the existence of representatives (body) elected by the staff meeting (conference) must not prevent the implementation of the trade unions’ functions. In this regard, the Committee recalls that, in accordance with the Workers’ Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), ratified by Armenia, appropriate measures are to be taken to ensure that, where there exist in the same undertaking both trade union representatives and elected representatives, the existence of elected representatives is not used to undermine the position of the trade unions concerned. The Committee also recalls that direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted.

In light of the foregoing, the Committee requests the Government to clarify whether, under the legislation in force, in cases where there is no trade union representing fifty per cent of the company’s workers, and the existing minority unions, if the Committee’s understanding of the legislation is correct, are entitled to bargain collectively on behalf of their own members, the elected representatives may do so at the same time on behalf of the non-unionized workers.

Duration of collective agreement. In its previous comments, the Committee had noted that, according to section 61(2) of the Labour Code, if an enterprise is privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. The Committee notes that, under section 59(4) of the Labour Code as amended, the same issue arises in the case of the restructuring of the enterprise. The Committee considers that neither the restructuring nor the privatization of an enterprise should in itself automatically result in the extinction of all the obligations resulting from the collective agreement and that the parties should in any case be in a position to advocate the application of relevant clauses such as those concerning severance pay. The Committee therefore requests the Government to take the necessary measures to amend sections 59(4) and 61(2) of the Labour Code to that effect.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 4 of the Convention. The Committee notes that, according to section 61(2) of the Labour Code, if an enterprise is privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. The Committee considers that the privatization of an enterprise should not in itself result automatically in the extinction of the obligations resulting from the collective agreement and that the parties should be able to take a decision thereon. The Committee therefore requests the Government to take the necessary measures to amend section 61(2) of the Labour Code to that effect.

The Committee notes section 7(7) of the Code, which provides that employment relations of civil servants as well as of the employees of the Central Bank of Armenia are regulated by the Labour Code, if not otherwise stipulated by the relevant legislation. The Committee requests the Government to specify the categories of workers not enjoying trade union and collective bargaining rights and to indicate, in this respect, the relevant legislative provisions.

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The Committee notes the Government’s first report.

Article 4 of the Convention. The Committee notes that, according to section 61(2) of the Labour Code, if an enterprise is privatized, the collective agreement is considered to be unilaterally terminated, irrespective of its validity period. The Committee considers that the privatization of an enterprise should not in itself result automatically in the extinction of the obligations resulting from the collective agreement and that the parties should be able to take a decision thereon. The Committee therefore requests the Government to take the necessary measures to amend section 61(2) of the Labour Code to that effect.

The Committee notes section 7(7) of the Code, which provides that employment relations of civil servants as well as of the employees of the Central Bank of Armenia are regulated by the Labour Code, if not otherwise stipulated by the relevant legislation. The Committee requests the Government to specify the categories of workers not enjoying trade union and collective bargaining rights and to indicate, in this respect, the relevant legislative provisions.

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The Committee notes the Government’s first report.

Articles 1, 2 and 3 of the Convention. The Committee notes with satisfaction that, following the ratification of the Convention, the legislative provisions contained in the Constitution of the Republic of Armenia of 1995, the Labour Code of 2004, as amended in 2006, the Law on trade unions of 2000 and the Criminal Code of 2003 establish prohibitions and provide for dissuasive sanctions and means of redress in case of acts of anti-union discrimination and interference.