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

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

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.