Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Georgia (Ratification: 1999)

The Committee notes the comments submitted by the Georgian Trade Union Confederation (GTUC) and the International Trade Union Confederation (ITUC) in communications dated 3 September 2010 and 4 August 2011, respectively, concerning restrictions on the right to strike and other matters examined by the Committee below. The Committee notes the Government’s reply to the comments of the ITUC.

Law on Trade Unions. The Committee had previously requested the Government to amend section 2(9) of the Law so as to lower the minimum trade union membership requirement set at 100 and to indicate the impact of this provision on the establishment of trade unions at the branch or sectoral levels, including information on the number of such trade unions and their respective membership. The Committee notes that in its report, the Government indicates that the Law on Trade Unions was adopted in 1997, prior to the ratification of the Convention; thus, by virtue of article 6 of the Constitution, according to which, ratified international conventions are part of national legislation and prevail over other legal acts, Convention No. 87 prevails over the Law on Trade Unions. The Government further indicates that according to the Civil Code, trade unions are non-commercial organizations and there are no restrictions as to the number of their members for the purpose of registration. According to the Government, in practice, there are numerous trade unions with the membership of lower than 100 persons. The Government lists in this respect the following examples: Ministry of Culture, Monument Protection and Sport – 80 trade union members, Ministry of Economic Development – 80 trade union members, and JSC Bank of Georgia – 80 trade union members. The Government further asserts that in practice, there are no cases of refusals to register a trade union by the National Registry Agency. Finally, the Government argues that it is not aware of any ILO document which sets up a minimum trade union membership requirement. The Committee recalls that a high minimum membership requirement restricts the right of workers to establish and join organizations of their own choosing without previous authorization and is incompatible with Article 2 of the Convention. It further recalls that it had always considered that the minimum requirement of 100 workers to establish unions by branch of activity, occupation or for various occupations is too high and should be reduced. While taking note of the examples provided by the Government, the Committee understands that they appear to refer not to the number of members of a particular trade union, but rather to a number of trade unions members at a particular entity (organization or undertaking). Furthermore, while taking due note of the Government’s indication that the Convention prevails over the Law on Trade Unions, the Committee stresses that it is the Government’s responsibility to ensure the application of the Convention in law and in practice. It therefore trusts that the Government’s next report will contain information on the measures taken or envisaged to amend section 2(9) of the Law on Trade Unions so as to lower the minimum trade union membership requirement.

Labour Code. The Committee had previously noted section 49(5) of the Code providing that, after the warning strike, the parties shall participate in the amicable settlement procedures pursuant to the Labour Code. The Committee had noted, however, that the Labour Code did not provide for such a procedure and requested the Government to give consideration to appropriate mechanisms of conciliation, mediation or voluntary arbitration instead. The Committee notes that the Government reiterates that amicable settlement procedures are regulated by section 48 of the Code in sufficient detail. The Committee once again notes that, under this section, such procedures involve: (1) a written notice of commencement of the amicable procedure reflecting the grounds of dispute and claims by one party; (2) a review of the notice by the other party and its reply; and (3) written decision by the representatives of the parties, which would become a part of the existing contract of employment. Furthermore, if no agreement has been reached within 14 days, the “other party is entitled to apply to court or arbitration” (section 48(5)). The Committee understands that this section, while describes the process, does not provide for a specific mechanism (procedure) to facilitate dispute settlement between the parties. The Committee recalls that dispute settlement procedure usually involves a neutral and independent third party, in whom the parties have confidence, and who could facilitate breaking a stalemate which the parties are unable to resolve themselves. The Committee notes that the Government, on the one hand, recognizes the need to develop mechanisms of conciliation and mediation to help reduce the incidence of disputes and, on the other, indicates that a special tripartite Working Group of the Tripartite Social Partnership Commission is empowered to mediate labour disputes. The Committee requests the Government to provide information on the work of the tripartite Working Group as to the dispute mediation, including on the number of labour disputes it had conciliated and/or mediated. It recalls that the Government may avail itself of the technical assistance of the Office in respect of the developing and strengthening collective labour disputes conciliation and mediation mechanisms if it so wishes.

With regard to section 48(5) of the Code, according to which, if an agreement is not reached within 14 days, one of the parties is entitled to submit the dispute to the court or arbitration, the Committee had recalled that a provision which permitted either party unilaterally to submit the dispute for compulsory arbitration effectively undermined the right of workers to call a strike. The Committee requested the Government to take the necessary measures to amend this provision so as to ensure that recourse to arbitration is limited only to situations where the right to strike can be restricted or banned, that is in: (1) essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); (2) the public services only for public servants exercising authority in the name of the State; or (3) in the event of an acute national or local emergency. The Committee notes that the Government reiterates that recourse to the arbitration is not compulsory and that a strike can be declared regardless of whether an appeal to court or arbitration had been filed. The Committee also notes the Government’s indication that parties can refer the dispute to the arbitration only upon mutual consent and that an arbitration decision is final only if there is a preliminary consent of both parties to this effect. At the same time, the Government explains that pursuant to section 48(5), if in the course of the dispute, an agreement has not been reached within 14 days or if a party has avoided to participate in the amicable settlement, the other party is entitled to apply to court or arbitration and/or continue to exercise the right to strike. The Committee notes that the latter explanation of the Government appears to confirm that one of the parties can submit the dispute to the court or arbitration if the conditions set forth by section 48(5), as mentioned above, are satisfied. The Committee therefore reiterates its previous request and asks the Government to indicate measures taken or envisaged to amend section 48(5) of the Code so as to ensure that recourse to arbitration by one party to the dispute is limited to the abovementioned cases.

The Committee had previously requested the Government to repeal section 49(8) of the Code, which provides that a strike could not continue for more than 90 calendar days. The Committee notes that in the Government’s opinion, this provision is in conformity with the Convention, as the latter does not prohibit limitations on the duration of the strike. While noting the Government’s indication that after the expiration of 90 days, another strike can be declared by the union with regard to the same issue, the Committee considers that a legislation limiting duration of the strike to 90 days seriously undermines one of the essential means through which workers and their organizations may promote and defend their economic and social interests. The Committee considers that the right to strike should not be restricted through predetermined limitation on the duration imposed by the legislation and requests the Government to take the necessary measures to repeal this provision.

The Committee had further requested the Government to amend section 51(2) of the Code, which prohibits strikes in sectors where “work is impossible to suspend due to the technological mode of work”. Instead of prohibition of strikes in such services, the Committee suggested establishing a system of minimum services. The Committee notes that the Government reiterates that section 51(2) sets the minimum services requirement. The Committee points out, however, that this provision refers to the prohibition of strikes, without any reference to the system of minimum services and conditions thereof. The Committee notes, nevertheless, the Government’s indication that it will discuss the possibility of amending this section in the framework of the Tripartite Social Partnership Commission. The Committee trusts that the Government’s next report will contain information on the measures taken or envisaged to amend section 51(2) of the Code.

Finally, the Committee had requested the Government to amend section 51(4) and (5) of the Code providing that a strike by employees informed about termination of their contract before the dispute arises is illegal and that, if the right to strike arises before the termination of the time-based contract, the strike is considered illegal after the expiration of the term of the contract. The Committee notes that the Government while indicating that strike shall not serve as a ground for termination of labour relations (section 49(10) of the Labour Code), confirms that after the termination of the labour contract the strike is indeed considered illegal. The Committee therefore once again requests the Government to take the necessary measures in order to amend section 51(4) and (5) of the Code and to indicate measures taken or envisaged in this respect.