Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Russian Federation (Ratification: 1956)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 alleging numerous violations of trade union rights in practice, including acts of anti-union discrimination and interference by employers in trade union internal affairs, as well as ineffective mechanisms of protection against such violations. The Committee recalls that in its previous observations it had also noted communications submitted by the ITUC containing similar allegations. The Committee further notes the comments submitted by the Russian Labour Confederation and the Seafarers’ Union of Russia in a communication dated 16 December 2009 alleging that the work on amending the Labour Code pursuant to the recommendations of the ILO supervisory bodies was not moving forward. The Committee notes with regret that the Government once again does not provide observations on the comments submitted by ITUC and other workers’ organizations and expects that the Government will provide its observations on the 2006, 2008 and 2010 comments of ITUC with its next report.

Articles 1–3 of the Convention. The Committee had previously requested the Government to specify concrete sanctions imposed on employers found guilty of anti-union discrimination, as well as sanctions imposed for acts of interference by workers’ or employers’ organizations or their agents in each other’s affairs, particularly in the establishing, functioning and administration of the organizations, and to indicate the relevant legislative provisions. The Committee notes that in its report, the Government refers to the provisions of the Labour Code (section 195), Criminal Code (sections 201 and 285) and Code of Administrative Offences (sections 5.28–5.34).  In particular, it indicates that section 195 of the Labour Code provides for a possibility of bringing the head of an organization/undertaking and his or her deputies to the disciplinary liability, including dismissal, for violation of labour legislation and trade union rights. The Committee notes that this section imposes an obligation on an employer to consider an application by an employees’ representative body alleging violations of labour laws, other normative legal acts and terms of a collective agreement by the head of an organization/undertaking and/or his or her deputies and, if such violations are confirmed, to impose a disciplinary penalty, including dismissal, on the person responsible. The Committee further notes sections 201 and 285 of the Criminal Code, both punishing abuse of power, concern crimes against the interests of services in profit-making and other organizations, and crimes against State power and interests of the civil service and the service in local self‑governing bodies, respectively, and provide for heavy sanctions, including fines and imprisonment. Finally, the Committee notes sections 5.28–5.34 of the Code of Administrative Offences, providing for punishment in the form of a fine from five to 50 minimum wages for violation of labour laws, generally, and for: (1) avoidance of participation in collective bargaining; (2) refusal to provide information; (3) unreasonable refusal to conclude a collective agreement; (4) violations of collective agreement; (5) avoidance of receiving employees’ demands and participating in conciliatory procedures; and (6) dismissal of employees in connection with a collective labour dispute or a strike, in particular. The Government indicates that cases related to administrative offences are considered by the officials of the Federal Service on Labour and Employment and the bodies of the Federal Labour Inspection subordinated to it (section 23.12 of the Code). It further indicates that according to section 353 of the Labour Code, the Federal Labour Inspection ensures the supervision and control over the compliance with the labour legislation and other rules and regulations containing labour law provisions by all employers in the territory. While noting this information, the Committee refers to the allegations of ineffective mechanisms of protection against acts of anti-union discrimination and interference by employers in trade union internal affairs, as well as numerous violations of this nature in practice submitted by ITUC. The Committee therefore requests the Government to provide, in its next report, information on the application of the abovementioned legislative provisions in practice and, in particular, on the number of complaints of anti-union discrimination and acts of interference submitted, investigated and prosecuted within the last two years, as well as on the number of persons punished and the concrete sanctions imposed.

Article 4. Parties to collective bargaining. The Committee had previously requested the Government to amend section 31 of the Labour Code so as to ensure that it is clear that it is only in the event where there are no trade unions at the workplace that an authorization to bargain collectively can be conferred to other representative bodies. The Committee notes the Government’s indication that this issue will be discussed with the social partners at the October 2010 conference on the improvement of labour legislation. The Committee expresses the hope that section 31 of the Code will be soon amended and requests the Government to provide a copy of the amended text once it has been adopted.

Compulsory arbitration. The Committee notes the Government’s indication that with the adoption of amendments to the Labour Code in 2006, the Law on collective labour disputes is no longer in force. The Committee further notes the Government’s explanation that pursuant to sections 402–404 of the Labour Code, labour arbitration can only be established by the consent of the parties to the dispute, who also elect the arbitrators. The Government points out that it is impossible to establish an arbitration board at the will of only one of the parties to the dispute, except in cases provided for by Part 7 of section 404 of the Labour Code. The Committee notes that this provision refers to section 413, Parts 1 and 2, of the Labour Code and thereby imposes compulsory arbitration not only in essential services in the strict sense of the term, but also in other services determined by federal laws. The Committee recalls that recourse to compulsory arbitration in cases where the parties do not reach an agreement is generally permissible only in the context of essential services in the strict sense of the term or in the case of civil servants exercising authority in the name of the State. The Committee requests the Government to take the necessary measures to amend the relevant sections of the Labour Code so as to ensure the application of the abovementioned principle and to indicate measures taken or envisaged in this respect.

Level of collective bargaining. With regard to the Committee’s previous request to ensure that the legislation provides for a possibility to conclude an agreement at the occupational or professional level, the Committee notes the Government’s indication that section 45 of the Labour Code provides that agreements may be concluded at the general, interregional, regional, industrial, inter-industrial, territorial and other levels. The Government further explains that the legislation does not contain any provision prohibiting a possibility of concluding agreements at the occupational level and that while their number is small, there have been agreements signed at the occupational level. Furthermore, the Government indicates that the federal bodies of the executive power had not received any complaint regarding the lack of possibility to conclude agreements at the occupational or professional levels. The Committee takes due note of this information.

The Committee notes examples of collective agreements applicable to civil servants and civil employees of the military service and the system of execution of penal sentences provided by the Government.

With regard to its previous comments on the Labour Code amendment, the Committee refers to its observation on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), where it noted the information provided by the Government and, in particular its indication that the permanent tripartite working group of the State Duma Committee on Labour and Social Policy has resumed its work with a view to prepare proposals aimed at improving labour legislation, while taking into consideration proposals of the social partners. The Committee hopes that the work of the abovementioned working group will result in the near future in a legislative reform that will take into account the comments above and requests the Government to provide information on any further developments in this respect. The Committee once again reminds the Government that it can avail itself of the technical cooperation of the Office if it so wishes.