Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

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

The Government has supplied the following information.

The Constitution and the law "on trade unions" of the Republic of Belarus establish trade union rights and freedoms in accordance with the principles laid down by Convention No. 87. Relations of the Government with the trade unions are based on the principles of social partnership laid down by the Labour Code, including the principle of independence and autonomy of the parties. The Government does not intervene in questions of internal management of the trade unions, which are regulated by the law "on trade unions" and their own statutes. Any such intervention in the activities of public associations, including trade unions, will be considered as a criminal offence.

In the Government's opinion, the elections of the Chairperson of the Federation of Trade Unions of Belarus were held in full conformity with the legislation and the Statute of the Federation. Mr. Kozik has been elected at the VIth plenary session of the Council on 16 July 2002 by 208 votes in favour, 10 against, and 8 abstentions. This decision has been confirmed by the IVth Congress in September 2002.

The Government delegates of Belarus noted the statement of the Workers' group concerning Belarus, which has been distributed among the participants of the Conference, and express disagreement with this document. The calls contained in this statement to put pressure on Belarus on the part of other countries and to suspend any technical cooperation with it could only contribute to the confrontation.

The questions raised by the Committee of Experts are being constantly in the focus of the Government's attention. The Government understands the need to improve the national legislation in the field of freedom of association. In May 2003, the Government has invited ILO Executive Director, Mr. Tapiola, to visit Minsk in order to discuss the outstanding issues with all interested parties.

A Government representative stated that the Government of Belarus considered questions related to the observance of the rights of workers and the creation of the necessary conditions so that workers could freely protect their interests as one of the priorities of its policy. Social partnership had been recognized in Belarus as an efficient form of interaction between the Government, employers' organizations and trade unions. The legislation governing social and labour rights had been drafted with the participation of trade unions and employers' organizations. The National Council on Labour and Social Affairs had been operating in Belarus as a consultative body, with the participation on an equal footing of the representatives of the Government and all-republic associations of employers and trade unions. The National Council had been considering the most important issues of social and economic policy. General agreements between the Government and all-republic associations of employers and trade unions had been concluded. At the present moment, the General Agreement for 2001-03 was in force in the country. With a view to the effective implementation of the provisions of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), the previous year, within the framework of the National Council, a group of experts on the application of ILO standards was created, including representatives of the Ministry of Labour and Social Protection, the Ministry of Justice and of trade unions and employers' organizations. Tripartite consultative bodies and the regulation of labour relations by collective agreements had become widespread throughout the country. There were currently 16,993 collective agreements and 452 other agreements of various types.

She emphasized that freedom of association, including the right to organize in trade unions, was guaranteed by the Constitution. The rights of Trade Unions were set out in the Act on Trade Unions. This Act directly reflected the principles of Convention No. 87 concerning the freedom to establish and join trade unions, the right to formulate their statutes in full freedom, determine their structure, elect executive bodies and terminate their activities. In Belarus, workers actively exercised their right of association and over 90 per cent of workers were trade union members. The law accorded trade unions broad powers to protect the rights and economic interests of workers and ensured their active involvement in the life of the country and in the establishment of socio-economic policy. The trade unions were participating in the formulation of the state employment programme, the resolution of matters relating to social insurance and social security and labour protection. The trade unions also played an important role in the protection of individual rights of workers. Illegal restrictions on the rights of trade unions and the hindrance of their activities was not permitted. She emphasized that trade unions were independent in their activities, as set out in section 3 of the Act on Trade Unions.

Referring to the comments of the Committee of Experts, she emphasized that the number of issues raised by the Committee had raised difficulties for the Government from the legal point of view. These issues related to the activities not only of trade unions, but also of social associations as legal entities. She recalled the reference by the Committee of Experts to the provisions of Presidential Decree No. 2 of 1999 on certain measures to put into order the activities of political parties, trade unions and other social associations. This Decree prescribed the procedure for the registration of social associations in Belarus, including trade unions. The Decree set out clear requirements, which had to be met by a trade union in order to have the right to register as a legal entity. It also clearly indicated the cases when trade unions could be refused registration. The registration authorities did not therefore possess the so-called "freedom of discretion" in the process of deciding whether to register a trade union or to refuse its registration. The refusal of registration could be challenged in the courts. For the registration of a trade union, it was necessary to submit the minutes of the constituent assembly and the charter, confirm the location of the executive board of the trade union (its legal address), indicate the number of founders of the association and to provide information on the organizational structure and a description of the insignia of the trade union. The same conditions had been established for all social organizations, including trade unions.

She emphasized that in Belarus all trade unions went through registration. The isolated instances of non-registration concerned first-level trade union organizations at the enterprise level, which had not been independent trade unions, but part of the organizational structure of a larger trade union. The organizational units of trade unions, as well as the trade union as a whole, were legal entities and, as such, were subject to state registration. The main reason for refusal to register trade unions was the absence of a legal address. Compliance with the other provisions of the registration procedure did not pose any practical difficulties. The main problem relating to the provision of the legal address related to first-level trade union organizations, which tended to indicate as their legal address the premises located at an enterprise, which could be provided by an employer, alongside means of communication and transport facilities. However, the legislation did not oblige the employers to provide premises to trade unions and this matter had to be resolved through negotiations between the employer and the trade union. In practice, cases of the refusal by employers to provide premises were rare.

In Belarus, all trade unions and over 26,000 organizational units of trade unions had been registered. Section 3 of Decree No. 2 provided that the activities of non-registered associations and those associations which had not been re-registered were prohibited. Section 3 also provided that the associations which were not re-registered were subject to liquidation according to the prescribed procedure, namely by court decision. Such a decision could be challenged in court. She emphasized that these provisions of the Decree had not been applied in practice because all trade unions had been re-registered. Decree No. 2 also provided that 10 per cent of the workers of an enterprise were necessary to create a trade union. The inclusion of this provision in Decree No. 2 was due to the necessity to resolve the issue of the representativeness of trade unions. She believed that, in the case of Belarus, where over 90 per cent of workers were trade union members, this provision was not excessive.

In March 2001, the President of Belarus had issued Decree No. 8 on certain measures aimed at improving arrangements for receiving and using foreign gratuitous aid. The creation of a transparent system for receiving and using such aid and an efficient system of control was particularly important in the countries of the former Soviet Union, which received such aid but which was not always used for the purpose for which it was intended. The Decree introduced the prohibition on using foreign gratuitous aid for conducting activities aimed at changing the constitutional order of Belarus, overthrowing state power and incitement to commit such acts, war propaganda or violence for political purposes, the inducement of social, nationalist, religious and racial hatred, as well as other acts prohibited by the legislation. In accordance with the provisions of the Decree, foreign gratuitous aid in any form could not be used, among other matters, for the preparation of a referendum, the organization of public meetings, rallies, street processions, demonstrations, pickets, strikes, designing and disseminating campaign material, as well as organizing seminars and other forms of mass campaigns for the achievement of the above results. The prescribed procedure for the registration of gratuitous aid was not difficult and seven applications by trade unions for the registration of foreign gratuitous aid had been submitted in 2002, of which none had been refused. She emphasized that after the adoption of Decree No. 8 there had been no cases of liquidation of trade unions in connection with the violation of the procedure on use of foreign gratuitous aid. Moreover, the provisions of Decree No. 8 had not prevented cooperation by the Government and the social partners with the ILO.

Presidential Decree No. 11 on certain measures aimed at improving the procedure for organizing public meetings, rallies, street processions, demonstrations, other forms of mass campaigns and picketing in the Republic of Belarus, had been adopted in May 2001 and was intended to prevent mass gatherings having any serious consequences, particularly when they lost their peaceful character. Decree No. 11 provided for the possibility of the dissolution of organizations which did not ensure the orderly conduct of mass gatherings where the number of participants exceeded 1,000 persons and where substantial damage was caused. However, such dissolution could only be conducted in accordance with the procedure prescribed by the legislation, namely by court decision. She said that, since the adoption of Decree No. 11 of 2001, there had been no cases of the dissolution of trade unions on these grounds.

With reference to the comments of the Committee of Experts concerning the recent elections in the Federation of Trade Unions of Belarus, the largest trade union association of the country, she said that the Government had carefully studied all the facts relating to the election of the chairperson of the Federation and had concluded that the elections had been conducted in full conformity with the legislation and the statutes of the Federation. The election of Mr. Kozik as chairperson had been conducted in an open and transparent manner and had been confirmed by the Fourth Congress of the Federation of Trade Unions of Belarus in September 2002, the delegates to which had been elected under the previous administration of the Federation. She was aware that the change in the balance of power inside the trade union, resulting in the promotion of a number of trade union officials and the removal of others, had objectively created dissatisfaction in certain quarters. In her view, this was the primary cause of the complaints submitted to the ILO after the elections.

She emphasized that the Government did not interfere in the internal administration of trade unions. These matters were governed by the Act on Trade Unions and by the statutes of the trade unions. In her view, the legal system of Belarus provided all the necessary safeguards for the ordinary members of trade unions and their officials to protect their rights, including the right to recourse to the respective judicial or other competent bodies. She emphasized that the legislation of Belarus established criminal liability for interference in the activities of social associations, including trade unions. In accordance with section 194 of the Criminal Code of Belarus, impeding the legitimate activities of social associations or interference in their legitimate activities, was punishable by fines, the deprivation of the right to occupy certain positions, or corrective labour for a period of up to two years.

The right of workers to strike was established by article 41 of the Constitution of Belarus and by the Labour Code. Belarus had ratified a number of international legal instruments which guaranteed the right of workers to conduct strikes in accordance with national legislation. The general rules for the resolution of collective labour disputes were also prescribed by the Labour Code of Belarus, which entered into force on 1 January 2000. In her view, the provisions of the Labour Code governing the conduct of strikes took into account the interests of the social parties as well as those of society as a whole. The Labour Code provided for the establishment in the initial stages of a collective labour dispute of a conciliatory commission composed of the representatives of the parties to the dispute, the presence of a minimum number of the workers concerned and the holding of a secret ballot on the calling of the strike, the prior notification of the employer, the assurance for the period of the strike of minimum essential services and the prohibition of forcing workers to participate in a strike or to refuse to participate in a strike. The legislation of Belarus did not provide for compulsory arbitration or the requisitioning of labour. Any decision to declare a strike illegal had to be adopted by the courts.

In the process of the adoption of the Labour Code, the Government of Belarus had taken into account the comments of the Committee of Experts and the Committee on Freedom of Association with respect to the types of enterprises in which strikes were prohibited. However, with regard to the comments of the Committee of Experts concerning section 6 of the Labour Code, in her view there had been a translation error. In the report on Convention No. 87 transmitted to the ILO in 2002, the Government indicated that section 6 dealt not with workers, as indicated by the Committee of Experts, but with members of supervisory and other executive bodies of organizations such as social associations and foundations. These persons were not workers and they performed their duties either on the basis of a civil law contract or on a voluntary basis.

She expressed the hope that the discussion of the comments made by the Committee of Experts would be objective and devoid of political rhetoric. She expressed her disagreement with the statement by the Workers' group concerning Belarus which had been distributed among the participants at the Conference. The demands for other countries to put pressure on Belarus and the suspension of all technical cooperation by the ILO with Belarus contained in this statement, in her view, could only contribute to confrontation. This approach was not characteristic of the ILO or its tripartite bodies.

Finally, she emphasized that the questions raised in the comments of the Committee of Experts had been the object of constant attention by her Government. She understood the need to improve the national legislation in the area of freedom of association and to take further steps in this direction. In 2003, the Government had requested ILO assistance with the draft Law on Employers' Associations, and the ILO had agreed to provide such assistance. In May 2003, the Government had extended an invitation to Mr Tapiola, Executive Director of the ILO, to visit Minsk and to discuss the outstanding issues in the area of freedom of association with all the interested parties. She was confident that, despite all the difficulties, the Government would be able to find an optimal solution.

The Employer members recalled that the Committee had examined this case fairly frequently in the past, and most recently in 1997 and 2001. In 2002, the Government had been invited to discuss the case, but had inexplicably refrained from doing so, even though it had been present at the Conference. This had to be viewed as a sign of lack of interest and even non-compliance.

With regard to the comment made by the Committee of Experts on Presidential Decree No. 2 of 1999, requiring the re-registration of trade unions, they noted the statement by the Government representative that almost all trade unions had been re-registered and that only minor problems still persisted in this respect. However, they pointed out that, even if the requirement for registration applied to all trade unions, this did not mean that it was in accordance with the Convention. The Government representative had indicated that most of the problems arising in this respect concerned the requirement to indicate the legal address of the organization. The Employer members recalled in this respect that workers' and employers' organizations were different from other associations in that they enjoyed the protection afforded by Convention No. 87. The reference made by the Government representative to equality of treatment with other associations in this respect was not therefore relevant to the discussion and there was a clear violation of the Convention on this matter.

With regard to the minimum membership requirement for the establishment of an enterprise trade union, which was set at 10 per cent of the workers in the enterprise, the Employer members emphasized that this was not a matter to be regulated by the State, but should be left to workers' organizations themselves to settle. They added that obstacles of this nature should not be used to prevent workers' organizations from being consulted and having the opportunity to participate in bodies which discussed matters of concern to them. They therefore called upon the Government to analyse in depth the comments of the Committee of Experts on this matter and to take the necessary measures.

On the subject of the comments made by the Committee of Experts concerning the right to strike, the Employer members recalled their repeated affirmations that Article 3 of the Convention did not provide a legal basis for the right to strike. However, they added that the interference by the Government in trade union elections, as confirmed by the Committee on Freedom of Association in its conclusions on Case No. 2090, constituted an intolerable interference in the internal affairs of trade unions. Moreover, the Committee of Experts had rightly indicated that the restrictions placed upon trade unions from receiving financial assistance from abroad for their activities was a violation of the Convention, irrespective of the purpose for which such assistance was provided.

In conclusion, the Employer members noted that after many years of examining the case it was still their impression that the Government was turning a deaf ear to the need to make changes. The statement by the Government representative showed that the Government still considered itself to be responsible for the internal affairs of trade unions. The Government was therefore far from complying with the letter and spirit of the Convention and should be called upon to change its opinion with regard to these clear problems of non-compliance with its obligations under the Convention.

The Worker members indicated that since 1997 the Committee had been examining the case of the violations of trade union rights in Belarus. Unfortunately, last year the Government had declined any dialogue with the Committee. They hoped to be able to engage in a dialogue with the Government this year. In its comments, the Committee of Experts raised the following points: (i) the violation of Article 2 of the Convention concerning the right of workers and employers to establish organizations of their own choosing without prior authorization; (ii) the violation of Article 3 of the Convention concerning the right of trade unions to organize their activities without interference; and (iii) the violation of Articles 5 and 6 regarding international affiliation.

With respect to the right of workers and employers to establish organizations of their own choosing without prior authorization, the Committee of Experts had expressed its concern, especially with regard to the obligation to provide a legal address, the prohibition of any activity by non-registered associations (section 3 of Presidential Decree No. 2) and the rule imposing upon organizations a minimum membership requirement of 10 per cent of workers at enterprise level. The Committee of Experts had also called for the right to organize to be guaranteed for the members of advisory councils and other executive bodies of organizations.

With regard to the right of workers' organizations to organize their activities without interference, the Committee of Experts had indicated, first, that it was necessary to amend the Labour Code to authorize the exercise of the right to strike, and also to amend paragraph 1.5 of Presidential Decree No. 11 of 7 May 2001, which provided for the dissolution of a union in the event of problems in the course of a public demonstration. To this effect, the Committee of Experts had recalled that the dissolution of a trade union was an extreme measure which, when adopted for reasons of a picket action resulting in the disruption of a public event, the temporary halting of a service or the disruption of transport, was not in conformity with the right of workers' organizations to organize their activities in full freedom. Secondly, the Committee of Experts had referred to a complaint examined by the Committee on Freedom of Association concerning interference by the public authorities in trade union elections. This practice constituted a serious violation of the right of workers' organizations to organize their activities in full freedom. Thirdly, the Committee of Experts, referring to its General Survey of 1994 on freedom of association and collective bargaining, indicated that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State. Employees of the National Bank therefore had the right to have recourse to strike action without incurring penalties.

With respect to the right of international affiliation, the Committee of Experts had recalled that section 388 of the Labour Code and Decree No. 8 of March 2001 were not consistent with the provisions of Convention No. 87. The Worker members indicated that the situation in Belarus was worsening. Interference by the authorities in the activities of trade unions and the harassment to which trade unionists were subjected were unacceptable. The Government had to demonstrate the genuine political will to seek concrete solutions to the violations of trade union rights in the country. In conclusion, they emphasized that this was a case of continued failure to implement the Convention.

The Employer member of Belarus indicated that he wished to discuss several aspects of tripartite relations in Belarus. He welcomed the attitude of the Government towards the creation of the conditions for social partnership. He emphasized the importance of establishing a unified legislative basis for the operation of workers' and employers' organizations and he indicated that a working group had been created to examine the draft law on employers' associations. This draft was expected to be submitted to Parliament in November 2003. He regretted that the work on this law had been going on for more than six years and that it had not yet been adopted. The absence of such a law created certain problems for the operation of employers' associations in Belarus.

He indicated that the activities within the context of the tripartite relations were increasing. The general agreement concluded for three years was expiring in 2003 and the conclusion of a new agreement was expected at the end of this year. He highly appreciated the role of the ILO in the development of social partnership and its technical assistance and he called upon the ILO to conduct a legal evaluation of the draft law on employers' associations. He emphasized the importance of establishing a clear legislative basis and of interaction between employers and the Government. Finally, he supported the proposal to invite Mr. Tapiola to visit Belarus.

A Worker member of Belarus expressed his gratitude to the Committee for examining the issue of the protection of workers' rights in his country. Referring to the statement by the Government representative, he emphasized that the measures taken by the Government had not been the result of its good will, but rather of the decisive work of the Federation of Trade Unions, which had 4 million members.

He indicated that trade unions in Belarus had managed to re-establish their financial situation. The Government had decided that membership fees could be collected by all methods, and should be transferred ahead of other payments. The protection of trade union officials had also been improved, as their employment could no longer be terminated without the consent of a higher trade union body. Trade unions had been afforded the right to office space and means of transport.

He categorically refused to accept the conclusions of the Committee of Experts concerning the alleged lack of independence of the Federation of Trade Unions. The Federation had acted solely on the basis of its charter and the will of its members. The chairperson of the Federation had been elected without any violations of the law. These elections had been open and transparent, as confirmed by the presence of independent observers. The Government had made a significant step to strengthen the trade union movement and hoped that the Government would continue in this direction. Should the Government deviate from this route, the trade unions would take all legitimate measures. However, it was incorrect to say that nothing had been done by the Government. The Government should complete the process that it had already started. He emphasized that the trade unions were ready to help the Government and that he opposed the adoption of measures to exert pressure at the international level and to suspend technical assistance. Such measures could adversely affect the 4 million members represented by the trade union.

The Worker member of the Russian Federation indicated that he was speaking at the request of the Russian delegation of workers, which included the heads of all four representative trade union centres covering almost all trade union members in the country, 36 million of which were members of his Federation of Independent Trade Unions of Russia. Russian trade unions had been closely monitoring events in Belarus relating to the application of the provisions of ILO Conventions and, particularly, Convention No. 87. The Russian Federation and Belarus were going through the process of creating a unified State, and it made a significant difference for Russian trade unions if in one part of this future State the rights of workers were violated and trade union freedoms were not observed.

He had listened with great attention to the statement by the Government representative of Belarus and those of the other members of the Committee. As a member of the Governing Body, he had attended the discussion of this case in March 2003. He regretted that the majority of the conclusions and recommendations in the previous reports of the Committee of Experts had not yet been implemented, even though the ILO had been following the case for a number of years. He added that there had been further instances of violations of trade union rights and interference by the State in their internal affairs, such as recent prohibition of the publication of the trade union newspaper "Solidarity". He welcomed any effort aimed at the elimination of violations of the rights and freedoms of the trade unions in Belarus. However, he called for the Government to devote its considerable energies to improving the situation, rather than persistently violating trade union rights.

Russian trade unions were confident that all the provisions of Convention No. 87 would be applied by the Government of Belarus without any exceptions. They were also convinced that workers and trade unions were the first victims of violations and failure to comply with all ILO Conventions, because they were the most vulnerable partners in social dialogue. He hoped that the consideration of this case would lead the Government to pay greater attention to cases of the violation of this fundamental Convention and would help it adopt effective measures for the eradication of these violations as soon as possible. He also hoped that, as a result of conclusions adopted by the Committee, a climate of the real observance of the rights and freedoms of all trade unions without exception would be established in Belarus.

The Worker member of Germany said that the Government of Belarus had taken every available measure to undermine the independence of the trade union movement in the country. The action taken included administrative and legal threats, economic pressure, the threat of dismissal and intimidation. The persistent interference by the Government in the internal affairs of trade unions was part of a deliberate policy to wear down the trade unions newly established in 1991 and to take control of organizations representing 4 million workers. Since July 2002, high-ranking trade union officers had been replaced by nominees from the Office of the President, the secret service and the customs and financial authorities. As a result of the decision in December 2001 to cancel the check-off of trade union membership fees, the financing of trade unions had become critical, and trade union employees had not been paid. The Government had coerced trade unionists to establish "yellow" trade unions as the only way of keeping their jobs. In the meantime, the country's independent trade unions had been excluded from the examination of new draft legislation and had suffered a campaign of defamation from the state-controlled media. In 2002, the Government had initiated a campaign to prevent the re-election of any trade union leaders who were in favour of an independent Federation of Trade Unions, particularly through the threat of losing their jobs. The chairperson of the Federation had been replaced by a high-level official of the State, who had immediately re-established the check-off system and tripartite dialogue.

The Government had since focused attention on any organizations which were still independent of state control. One important instrument in this respect was the need to provide an official address for the registration of an organization. As most trade unions were based at the enterprise, and the use of enterprise addresses needed the approval of the employer, the establishment of trade unions was dependent upon approval by employers. Trade unionists who were still active had been dismissed and not reinstated, as demanded by the Committee on Freedom of Association. A Decree adopted in November 2002 had given the Federation of Trade Unions the exclusive right to bear the name of Belarus and the Minister of Industry had declared that the leaders of any trade unions which were still independent were a problem which needed to be solved within two months. Many trade union members had been placed under pressure to resign from independent unions. He emphasized that the systematic action taken against the independent trade unions and their leaders was pulling the country into economic crisis and isolation. The Committee should clearly emphasize the violations of Convention No. 87 in its conclusions and he called upon all the member States of the ILO to take appropriate steps to assist in the re-establishment of freedom of association in Belarus.

The Worker member of France noted that the statement by the Government representative of Belarus confirmed the grave irregularities, in law and in practice, observed in the report of the Committee of Experts and the conclusions of the Committee on Freedom of Association, especially as regards the right of trade unions to organize their activities in full freedom, the right of free political expression, public demonstration and the right to strike. Yet, these rights were an integral part of the constitution in democratic countries.

The exercise of freedom of association was not protected in Belarus, as illustrated by several legislative provisions. For instance, the law permitted the authorities to control the organization of unions, their operation and activities, which was contrary to Convention No. 87. Moreover, the dissolution of a trade union appeared to be the prescribed sanction for any type of infringement. In addition, the existence in certain legal texts of terms sufficiently vague, such as "social hatred" or "massive agitation", allowed for the dissolution of independent trade unions which had managed to overcome the obstacle of registration.

It appeared that the control exercised by public authorities over trade unions and organizations of civil society was aimed at preventing unions from furthering their claims on important questions, notably in respect of wages. Furthermore, the support from international workers' organizations was also closely controlled and prohibited. The Government representative seemed to consider the restrictions contained in the law to be normal. By accusing the unions, the Committee of Experts and the ILO of exerting pressure on her Government, she had shown contempt and lack of consideration for the Committee, thereby repeating the attitude shown the previous year when the Government had declined to engage in dialogue with the Committee. It was urgent for the Government to cease controlling the trade unions in an abusive manner. He concluded by indicating that the Committee's conclusions had to be very clear to bring about the application of Convention No. 87 in both law and practice.

The Worker member of Romania stated that the case of Belarus was a typical case of the repeated violation of Convention No. 87. Presidential Decree No. 2 of 26 January 1999, section 3 of which prohibited any activity by non-registered associations and set a minimum membership requirement of at least 10 per cent of workers at the enterprise level, had not yet been repealed. This measure was not in conformity with Article 2 of Convention No. 87, which recognized the right of workers and employers to establish organizations of their own choosing without prior authorization.

The Committee of Experts had also noted the violation of Article 3 of Convention No. 87. In fact, the provisions of the Labour Code, which had not been amended, set legislative limitations on the right to strike when the rights and freedoms of third parties were prejudiced, in particularly: (i) the provisions of sections 388 and 399; (ii) the requirement to notify the duration of a strike (section 390); and (iii) the obligation to ensure minimum services during the period of the strike.

In Belarus, the right of workers' organizations to organize their activities in full freedom was not guaranteed. By way of illustration, reference could be made to paragraph 1.5 of Presidential Decree No. 11 of 7 May 2001 which provided for the possibility of dissolving a union in the event that an assembly, demonstration or strike picket resulted in the disruption of a public event, the temporary suspension of an organization's activity, or the disruption of transport. The dissolution of a trade union was an extreme measure contrary to the right of workers' organizations to organize their activities in full freedom. The interference of the public authorities in recent trade union elections also constituted a serious violation of Convention No. 87. In addition, the right to organize and the right to strike were not guaranteed for certain categories of government employees and other persons employed in the public service. He expressed the firm hope that the Government would take the necessary measures in the near future to bring its legislation into full conformity with the provisions of the Convention.

Another Worker member of Belarus described how, against a background of the persistent violation of trade union and workers' rights, he had been removed from his position as chairperson of the Federation of Trade Unions, along with colleagues, such as Mr. Boukhvostov, the chairperson of the trade union of agricultural machinery production workers. Following concerted pressure from the Ministry of Industry and employers, they had been removed from office and their places taken up by former employees of the Office of the President, the secret services and the customs and tax authorities. He described in detail the measures taken to interfere in the trade union election processes with a view to the domination of the trade union movement and its integration into the state machinery. He also described how the President of the country had accused certain independent trade union leaders of being constantly involved in politics and acting as the opposition. Pressure had been placed upon individual leaders to create "yellow" trade unions which were intended to cover all the workers of industrial enterprises. This process had culminated in the extraordinary congress of the Federation of Trade Unions, which had been notable for the participation of the Minister of Industry and the directors of large enterprises. One effect of this process was that the Federation had decided to revoke its support for Case No. 2090 to the Committee on Freedom of Association. Clearly, the Federation no longer wished to draw attention to the widespread and persistent violation of human rights in his country. The interference by the Government in the internal affairs of trade unions was so clear in his country that no one could possibly deny it.

The Government member of Cuba stated that the comments made by the Worker and Employer members of Belarus indicated that a certain progress had been made in the country which needed to be promoted through dialogue and cooperation, and not through confrontation, interference and pressure. The Cuban delegation observed the strange coincidence that the accusations against Belarus were similar to the campaign led by centres of power which controlled NGOs and trade union confederations. Certain comments made by the Committee of Experts on the case of Belarus relating to Convention No. 87 were contradictory and questionable. The Committee of Experts had arbitrarily questioned the legislative limitations to the right to strike established in the interests of the rights and freedoms of other persons. These limits were fully compatible with international law, since the Universal Declaration on Human Rights and other instruments clearly established that the rights and freedoms of certain parties could not be exercised in a way that ran counter to the rights and freedoms of others. The Committee of Experts referred to the need to avoid interference by the public authorities in trade union activities, but should also refer to the need for workers to be independent from foreign governments. He also referred to the questions raised by the Committee of Experts on the legal obligation to ensure minimum services during a strike. This element was included in the legislations of nearly all countries in the world, including the industrialized countries, and had been frequently used by various countries which did not appear on the list of the cases and were not subject to comments. The right to strike could not be exercised without certain restrictions, such as the need to guarantee essential minimum services in order to ensure respect for the rights of others such as a minimum medical service which guaranteed the right to life, without which no other right could be enjoyed. Cuba hoped that the Conference Committee would take these comments into account. He called for greater objectivity by the Committee of Experts and the avoidance of the use of technical pretexts to promote hidden objectives.

The Government member of Denmark, also speaking on behalf of the Government members of Finland, Iceland, Netherlands, Sweden and the United Kingdom, welcomed the fact that the Government representative had been able to attend the present meeting of the Committee, especially following the non-appearance of her delegation the previous year, which had been particularly surprising in view of the election of the Government of Belarus to the Governing Body for a three-year period at that same time. She noted the decision by the National Council to establish a tripartite group of experts on the application of ILO standards and hoped that the work of this group would speed up the process of bringing the situation in Belarus into conformity with the Convention. She also noted the Government's invitation to Mr. Tapiola, ILO Executive Director, to visit the country to discuss the outstanding issues with all the interested parties. Nevertheless, she reiterated her concern about the serious violations of trade union rights in the country. She therefore requested the Government to amend Presidential Decree No. 2 of 1999 so that section 3, banning the activities of non-registered associations, did not apply to trade unions at any level of their organizational structure. She also called upon the Government to take the necessary measures to amend the legislation on the right to strike as soon as possible in order to ensure the right of trade unions to organize their activities in full freedom in accordance with the Convention. She further requested the Government to amend Decree No. 8 of 2001 and section 388 of the Labour Code so that national workers' and employers' organizations could receive assistance, including financial assistance, from their international or foreign counterparts in pursuit of their legitimate aims. Finally, she urged the Government to comply fully with the requests made by the Committee of Experts and to keep it informed of all the measures taken to bring the situation into conformity with the Convention.

The Government member of the United States stated that she wished to add the concerns of her Government to the sentiments of serious concern already expressed by other speakers. In fact, her Government had been concerned with this situation for some time, as witnessed by the decision in 2000 to remove Belarus from its trade preference programme on the grounds that trade union rights had not been respected and independent trade unions had been suppressed. This concern had by no means diminished.

She was concerned by the Government's attempts to transform the trade union movement in Belarus into an instrument for the pursuance of its own political aims. She referred, in particular, to attempts to remove the legitimately elected leadership of unions in an effort to bring them under government control, and to the regular and systematic interference in and obstruction of trade union activities. The evidence of the Government's serious and continuous violations of Convention No. 87 had been clearly laid out in the reports of the Committee of Experts and the Committee on Freedom of Association. In March 2003, the Committee on Freedom of Association had indicated its urgent concern about the trade union situation in Belarus and its Chairperson had met the Deputy Minister of Labour. She indicated that the Government had recently invited a high-ranking ILO official to Minsk to discuss the outstanding issues with all interested parties. She hoped that these discussions would include individuals and organizations that genuinely represented the workers of Belarus and that they would lead to real improvements in both law and practice. In the meantime her Government would monitor the situation with continued concern.

The Government member of the Russian Federation drew the attention of the Committee to the fact that around 90 countries had been mentioned in the report of the Committee of Experts as having problems with the application of Convention No. 87. The task of improving the legislation was very important for Belarus as well. He indicated that the Government of Belarus recognized the importance of this problem. The personal presence of the Minister of Labour in the Committee reflected the importance attributed by the Government to this matter and its efforts to find a constructive solution. The Government of Belarus had been supported by the Federation of Trade Unions and the association of employers. He welcomed the invitation to Mr. Tapiola to visit Belarus. He was convinced that the development of cooperation between the Government of Belarus and the ILO would contribute to the alleviation of the concerns of the Committee of Experts. He did not share the view of the Worker member of the Russian Federation that there had been no positive changes in Belarus and emphasized that such positive changes had in fact taken place. He supported the appeals to the Government to strengthen social dialogue and asked the Committee to make a recommendation which would not create obstacles for constructive dialogue within Belarus, as well as between Belarus and the ILO.

The Government member of Germany noted the apparent willingness of the Government to engage in further dialogue. However, he said that he found that the statement by the Government representative was unconvincing in its substance. He endorsed the statements made by the Employer and Worker members and the Government members of the Nordic countries and pointed to the inconsistency of the Government's indications made in document D.11 to the effect that the elections of the chairperson of the Federation of Trade Unions of Belarus were held in full conformity with the legislation and the statutes of the Federation, while in its statement in the fourth paragraph it admitted that there was a need to improve the national legislation in the field of freedom of association. Recalling the importance attached by the Committee to the willingness of governments to accept the observations of the Committee of Experts and to comply with their obligations, he called upon the members of the Committee to compare the lack of will shown by the Government of Belarus with similar cases that it had examined recently and to draw the appropriate conclusions. All the examinations by the supervisory bodies of this case had shown the Government's lack of understanding of the requirements of the Convention.

The Government representative replied that in her previous statement she had explained in detail the position of the Government. She reiterated that her Government was prepared to cooperate with the social partners and with the ILO and that she had listened attentively to all the statements by the members of the Committee. The positive proposals would be taken into account in the action taken by the Government. However, several statements did not reflect the real situation in the country. She emphasized that the Government was ready to improve the legislation and she hoped that the discussion of the case in the Conference Committee would help in this work.

The Worker members stated that the Committee had held an important discussion on a serious and unacceptable situation regarding the violation of freedom of association in Belarus. Nevertheless, the Government refused to accept its responsibility in this respect. The Worker members proposed that the conclusions on this case should be included in a special paragraph of the Committee's report.

The Employer members noted that a number of interesting facts had been highlighted during the discussion which served to supplement the information provided in the report of the Committee of Experts. However, all of this information only served to confirm the picture that they already had of the situation. Although the Government representative had expressed the readiness of her Government to improve the situation, she had provided no information in her opening statement concerning any measures taken for that purpose. The Employer members emphasized that for many years the situation had been in need of great improvement. They therefore agreed with the Worker members that the Committee should include its conclusions on this case in a special paragraph of its report.

The Government representative asked the Committee to take into account the ongoing consultations with the ILO and the invitation extended to Mr. Tapiola, Executive Director of the ILO, to visit Belarus. She indicated that the fact that the legislation covered not only trade unions, but also other associations, created additional difficulties in the work of the Government. She asked the Committee not to place its conclusions in a special paragraph of its report.

The Committee noted the oral and written information provided by the Government representative and the discussion that followed. The Committee noted that the comments of the Committee of Experts referred to a number of divergences between law and practice and the Convention. In particular, the Committee noted that the law and various legislative decrees placed important restrictions upon the right of workers and employers to establish organizations of their own choosing without prior authorization and the right of such organizations to operate without interference by the public authorities, including the right to receive foreign financial assistance for their activities.

The Committee also noted with deep concern the conclusions of the Committee on Freedom of Association in Case No. 2090 concerning the interference by the public authorities in trade union elections, in violation of Article 3 of the Convention, and deeply regretted to note the statements made before the Committee to the effect that its interference in the internal affairs of trade unions was continuing. In this respect, the Committee firmly urged the Government to take all the necessary measures in the near future to bring an end to such interference with a view to ensuring full compliance with the provisions of the Convention in both law and practice.

While noting the Government's statement that it was paying particular attention to the comments of the Committee of Experts and that it had invited a high-level official from the Office to visit the country, the Committee regretted to recall that the Government had been referring for several years to the need for changes in the legislation and that up to now it had not been able to note real progress in this regard. It therefore expressed the firm hope that all the necessary measures would be taken in the very near future to guarantee in full the rights afforded by the Convention to all workers and employers, particularly with regard to the right of their respective organizations to organize freely their internal affairs and to elect their leaders without interference by the public authorities. The Committee urged the Government to provide detailed information in the report due so that it could be examined by the Committee of Experts at its next session and expressed the firm hope that next year it would be in a position to note real progress achieved in relation to this case. The Committee decided to include its conclusions in a special paragraph of its report. It also decided to mention this case for continued failure to implement the Convention.