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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Georgia (Ratification: 1993)

The Committee notes the comments submitted by Education International (EI) in communications dated 30 August 2010 and 31 August 2011, which concern issues pending before the Committee on Freedom of Association (CFA) in Case No. 2678, concerning interference in activities of the Educators & Scientists Free Trade Union of Georgia (ESFTUG) and dismissals of trade unionists and the Government’s reply thereon. In this respect, the Committee also notes the November 2011 conclusions and recommendations of the CFA (see 361st Report). The Committee also notes the comments made by the Georgian Trade Union Confederation (GTUC) and the International Trade Union Confederation (ITUC) in communications dated 3 September 2010, and 4 August and 10 October 2011, respectively, alleging numerous cases of anti-union discrimination, employers’ interference in trade union affairs and violation of collective bargaining rights. The Committee notes that some of their allegations refer to the issues pending before the CFA in Case No. 2663. In this respect, the Committee notes the March 2010 CFA conclusions and recommendations (see 356th Report). The Committee notes the Government’s reply to the comments of the ITUC.

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2010. It further notes that, on that occasion, the Conference Committee welcomed the steps taken by the Government to institutionalize social dialogue in the country through the establishment of the Tripartite Social Partnership Commission (TSPC), whose statutes were adopted and secretariat established in March and May 2010, respectively.

The Committee notes that in its report, the Government indicates that in the period from January 2010 to July 2011, the TSPC has met approximately ten times and its tripartite Working Group has held 24 meetings. The Government explains that before each meeting the secretariat of the TSPC elaborates the agenda and transmits it to the social partners for comments. It points out that the main issues discussed by the TSPC are related to the allegations provided by the GTUC regarding cases of violation of trade union rights. The Government further indicates that, in line with the ILO supervisory bodies’ recommendations that violations of trade union rights should be investigated by the Government, it had made a decision that such cases should be reviewed in the framework of the TSPC to ensure involvement of all interested parties. For this purpose, the TSPC was empowered to conciliate and mediate labour disputes. The Government informs that the following allegations by the GTUC, ITUC and EI on cases of anti-union discrimination have been discussed by the TSPC: LTD Poti Sea Port case; LTD BTM Textile case; LTD Georgian Railway case; and the ESFTUG case. The Committee welcomes this information. It recalls, however, that in addition to noting the alleged cases of violation of the Convention in practice, it had also raised issues relating to an insufficiency in the legislative framework of an effective and adequate protection against anti-union discrimination and meaningful promotion of collective bargaining. In this respect, it had noted that the abovementioned TSPC tripartite Working Group had been charged with reviewing and analysing the conformity of the national legislation with the findings and recommendations of the Committee of Experts and to propose the necessary amendments. The Committee expressed the hope that any proposed amendments would take into account its comments, which concerned the following issues.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee had previously noted that section 11(6) of the Law on Trade Unions and section 2(3) of the Labour Code which prohibited, in very general terms, anti-union discrimination, did not appear to constitute sufficient protection against anti-union discrimination at the time of recruitment of workers and at the time of termination of their employment. In particular, the Committee had noted that, pursuant to section 5(8) of the Labour Code, an employer was not required to substantiate his/her decision for not recruiting an applicant and considered that the application of this section in practice might result in placing on a worker an insurmountable obstacle when proving that he/she was not recruited because of his/her trade union activities. The Committee had also noted that, according to sections 37(d) and 38(3) of the Labour Code, the employer has a right to terminate a contract at his/her initiative with an employee, provided that the employee is given one month’s pay, unless otherwise is envisaged by the contract. The Committee considered that, in light of the absence of explicit provisions banning dismissals by reason of union membership or participating in union activities, the Labour Code did not offer sufficient protection against anti-union dismissals. The Committee therefore trusted that the necessary measures would be taken to amend the abovementioned provisions of the Labour Code so as to ensure an adequate protection against anti-union discrimination. It further requested the Government to indicate the form of compensation available to workers, victims of acts of anti-union discrimination, including dismissals, transfers, downgrading, etc.

The Committee notes that the Government reiterates the information it had previously provided by referring to the general prohibition of anti-union discrimination enshrined in the Constitution (articles 14 and 26), the Law on Trade Unions (section 11(6)), the Labour Code (section 2(3)) and the Criminal Code (section 142). The Government considers that the legislation clearly prohibits any type of discrimination, including anti-union dismissals, and sufficiently protects against violations of these rights and is therefore in compliance with the Convention. The Government adds that no application has been submitted to the relevant governmental agencies for the past several years regarding restrictions of trade union rights. With regard to section 5(8) of the Labour Code, the Government indicates that, in practice, an employee becomes a trade union member after recruitment and that there have been no cases of a person not being recruited because of his/her trade union membership; it therefore considers that this provision is in conformity with the Convention. With regard to section 37(9) of the Labour Code, the Government indicates that this provision does not stipulate that an employer can dismiss a worker without any reason; but rather that one of the grounds for suspending labour relations is the termination of a labour contract, which is possible upon the initiative of one of the parties or on the grounds stipulated by the contract. If a dismissed worker appeals to the court, the employer is obliged to provide arguments and reasons for the dismissal to the court. Furthermore, the Government points out that, according to the Code, in case of termination of employment, an employer is obliged to give at least one-month’s pay if higher payment is not envisaged by the agreement between the parties. As to the compensation available to workers, victims of acts of anti-union discrimination, including dismissals, transfers and downgrading, the Government indicates that such workers have the right to request compensation by appealing to the court and indicating the amount of compensation desired; the court makes a final decision regarding compensation and its amount. The Government concludes by indicating that it does not see the need for initiating amendments to the Labour Code.

The Committee notes the information provided by the Government. It notes, in particular, that on the one hand, the Government indicates that there have been no complaints of restrictions of trade union rights, and on the other, that the allegations of violations of trade union rights pending before the ILO supervisory bodies are being examined by the TSPC. It further notes new allegations of dismissals of trade union officers and founding members submitted by the ITUC in its communication dated 10 October 2011. The Committee recalls that, in terms of Article 1 of the Convention, workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. The Committee recalls that such protection should cover hiring, dismissals and discriminatory measures during employment. With regard to the protection at the time of recruitment, the Committee recalls that workers may face many practical difficulties in proving the real nature of denial of employment, especially when seen in the context of blacklisting of trade union members, which is a practice whose very strength lies in its secrecy. Since it may often be difficult, if not impossible, for a worker to prove that he/she has been the victim of an act of anti union discrimination, legislation could provide ways to remedy these difficulties, for instance by stipulating that grounds for the decision of non-recruitment should be made available upon request. With regard to the termination of employment, the Committee considers that legislation which allows the employer in practice to terminate the employment of a worker on condition that he/she pays the compensation provided for by law in all cases of unjustified dismissal, without any specific protection aimed at preventing anti-union discrimination, is insufficient under the terms of Articles 1 and 3 of the Convention. The Committee underlines that while there exists a variety of systems affording an “adequate” protection against acts of anti-union discrimination, it is essential that the system in place is an efficient one. Thus, would be compatible with the Convention a system establishing preventive machinery by requiring that a dismissal is authorized by an independent body or public authority (labour inspectorate or courts); a system which provides for the reinstatement of an unfairly dismissed worker; or a system providing for compensation for the prejudice suffered as a result of an act of anti-union discrimination and sufficiently dissuasive sanctions imposed on employers found guilty of anti-union discrimination, which also act as an effective deterrent to prevent in practice anti-union dismissals. While noting that general provisions prohibiting discrimination exist in the legislation, in the light of the numerous alleged cases of anti-union discrimination, the Committee considers that the system currently in place in Georgia does not afford an adequate protection. The Committee therefore once again requests the Government to take the necessary measures to revise sections 5(8), 37(d) and 38(3) of the Labour Code in consultation with the social partners, so as to ensure that the Labour Code provides for an adequate protection against anti-union discrimination taking into account the principles above. It requests the Government to provide information on the measures taken or envisaged in this respect. The Committee further asks the Government to provide detailed information on the application of the Convention in practice, including statistics on the number of confirmed cases of anti-union discrimination, the remedies provided and sanctions imposed, as requested by the June 2010 Conference Committee.

Article 4. Collective bargaining. The Committee had previously noted that sections 41–43 of the Labour Code seem to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers, including as few as two workers. Considering that direct negotiations between an undertaking and its employees, bypassing representative organizations where these exist, run counter to the principle that negotiations between employers and organizations of workers should be encouraged and promoted, the Committee requested the Government to take the necessary measures in order to amend its legislation so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff.

The Committee notes the Government’s indication that labour legislation aims at empowering workers to conclude labour agreements to provide for better working conditions and that this Convention has the same objective; accordingly, legislation is in compliance with the Convention. The Government considers that, while the Convention provides for the possibility to carry out collective bargaining between an employer and a trade union, it does not prohibit collective bargaining between an employer and non-unionized workers, even when a trade union exists at the particular undertaking. Consequently, adds the Government, collective agreements concluded with trade unions and agreements between an employer and non-unionized workers enjoy, under the national legislation in force, an equal standing. The Government points out, however, that unionized workers have several privileges over non-unionized workers. For example, an employer is obliged to bargain collectively with a trade union upon the initiative of the latter, but is not obliged to do so with non-unionized workers; trade unions enjoy certain facilities (premises, check-off facilities, etc), which non-unionized workers do not have. The Government further indicates that it promotes collective bargaining in practice and that the biggest companies in Georgia have collective agreements with the respective trade unions. As for the promotion of collective bargaining under Article 4 of the Convention, the Government considers that such “promotion” does not necessarily imply legislative measures. The Government further indicates that the Labour Code and the Law on Trade Unions in no way restrict promotion of collective bargaining, but to the contrary, contain the relevant rules, conditions and procedures. The Government concludes by emphasizing that, according to the Labour Code, the right to collectively bargain belongs not only to trade unions, which organize only about 12 per cent of the labour force (2008), but also to other unions or groups of employees. This regulation puts non-unionized workers and those organized in trade unions under equal conditions and thus excludes the discrimination based on trade union membership.

The Committee notes the arguments put forward by the Government, but finds it difficult to reconcile the equal status given in law to collective labour agreements concluded with trade union organizations and agreements concluded with a group of non-unionized workers with the ILO principles on collective bargaining, according to which the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations should be encouraged and promoted with a view to the regulation of terms and conditions of employment by means of collective agreements. If, in the course of collective bargaining with the trade union, the enterprise offers better working conditions to non-unionized workers under individual agreements, there is a serious risk that this might undermine the negotiating capacity of the trade union and give rise to discriminatory situations in favour of the non-unionized staff; furthermore, it might encourage unionized workers to withdraw from the union. The Committee therefore once again requests the Government to take the necessary measures in order to amend its legislation so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff and to promote collective bargaining with trade union organizations. It requests the Government to provide information on all measures taken or envisaged in this regard.

The Committee had previously requested the Government to indicate the number of collective agreements concluded in the country and to provide relevant statistics in relation to the private sector. The Committee notes the Government’s indication that, while it does not have official statistics regarding collective agreements, the top 20 companies in the country have collective agreements with trade unions and provides, in this respect, examples of five companies. The Committee requests the Government to continue to provide all relevant information in this respect.