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

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

The Committee notes the information provided by the Government and the discussion that took place in the Conference Committee on the Application of Standards in June 2011. The Committee also notes the 361st Report of the Committee on Freedom of Association on the measures taken by the Government of the Republic of Belarus to implement the recommendations of the Commission of Inquiry.

The Committee further notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011 detailing violations of the Convention, which the Committee had already dealt with in its previous comments. It also notes the comments submitted by the Belarusian Congress of Democratic Trade Unions (CDTU) in a communication dated 30 August 2011.

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee recalls that it had previously noted with concern the comments made by the CDTU on the discriminatory use of fixed-term contracts. The CDTU had alleged, in particular, that members of free and independent unions were forced to leave their unions under the threat of non-renewal of their contracts, and had provided detailed information on the impact of threats of non-renewal of fixed-term contracts on its affiliates at the following enterprises: “Grodno-Azot”, “Belshina”, “Polimir”, Mozyr Oil Refinery, “Zenit”, Brest Pedagogical University and Hydraulic Power Station in Novolukoml. The Committee had further noted with regret the case of Mr Aleksey Gabriel, dismissed leader of a primary-level organization of the Belarusian Free Trade Union (BFTU) at the Lukoml Power Station and the allegations of anti-union discrimination suffered by members affiliated to the Radio and Electronic Workers’ Union (REWU), threats and interference in internal trade union affairs at “Mogilev ZIV” and “Avtopark No. 1”. It further noted the allegations of pressure put on workers to leave their union at the Bobruisk Plant of Tractor Parts and Units (BFTU primary trade union), “Grodno Azot” company, “Delta Style” company in Soligorsk, “Lavanstroi” construction company and Minsk Automated Lines company (all primary trade unions of the Belarusian Independent Trade Union (BITU)). The Committee urged the Government to take the necessary measures to ensure that all of the abovementioned allegations of anti-union discrimination and interference relating to the CDTU and REWU-affiliated trade unions and their members at all of the abovementioned enterprises, were brought to the attention of the Council for the Improvement of Legislation in the Social and Labour Sphere (“the Council”) without further delay. It requested the Government to provide information on the outcome of the discussion and on any remedial measures taken should it be found that anti-union discrimination and interference have occurred.

The Committee notes that in its report, the Government indicates that a fixed-term contract is concluded upon an agreement between an employer and a worker and that transfer from a permanent to contractual form of employment can take place only if there are organizational, structural or economic reasons, which can be disputed by a worker in court. The Government also indicates that the contractual form of employment provides employers with more flexible possibilities of human resource management. An employer’s decision not to renew a contract cannot be qualified as dismissal upon an employer’s initiative. The legislation in force does not require an employer to justify his or her decision not to renew a contract with a particular worker: expiry of a contract is the basis of its termination. Therefore, if an employer decides not to renew a contract upon its expiry, no justification is needed and the worker whose contract is not renewed has no legal means to raise the non-renewal in court. The Committee notes that with regard to the allegations concerning Mozyr Oil Refinery, the Government indicates that there are two primary trade unions at the enterprise: one is affiliated to the Federation of Trade Unions of Belarus (FTUB) and the other, to the BITU. According to the Government, sometimes workers change their affiliation from one union to the other, and in the period from 2009 to March 2011, 648 workers (some of whom were members of the BITU-affiliated union) left the enterprise for various reasons. With regard to the “Grodno Azot” company, the Government indicates that the allegations have been investigated by the Prosecutor’s office on two occasions and that the allegations of pressure have not been confirmed. With regard to Bobruisk Plant of Tractor Parts and Units and Minsk Automated Lines company, the Government indicates that both the BFTU and BITU primary trade unions are signatories to the respective enterprises’ collective agreements alongside the FTUB-affiliated unions.

The Committee notes the information provided by the Government with respect to the use of fixed-term contracts. In this respect, it notes with concern allegations contained in the 2011 CDTU communication to the effect that short term contracts at the company level are used by employers to fight independent trade unions and that under this system, numerous trade union activists have been dismissed and that the courts consistently dismiss such cases. The Committee considers that not only dismissal, but also non-renewal of a contract, when imposed as a result of trade union membership or legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities.

The Committee regrets that the Government provides extremely limited information with regard to the alleged cases of anti-union discrimination and interference at the abovementioned enterprises, despite the Conference Committee’s explicit request to the Government to submit, after an independent and impartial investigation, detailed observations on the allegations of anti-union discrimination, including as regards the anti-union impact of fixed-term contracts and employer interference in workers’ organizations, as well as information on any proposed amendments to the legislation to the Committee of Experts. The Committee further notes with regret new allegations of attempts to dissolve the BITU’s primary trade union at Mozyr Oil Refinery through pressure on its members. The Committee recalls that it had previously noted with regret that according to the CDTU, the Government refused to use the tripartite working group created by the Council to discuss in substance the issue of trade union rights’ violation. The Committee notes with deep regret that in this regard, the Government has not referred to any discussions on the issue of anti-union dismissals, threats, interference and pressure which had taken place at the tripartite Council within the reporting year. The Committee therefore strongly urges the Government to take the necessary measures to ensure that all of the abovementioned allegations of anti-union discrimination and interference at all of the abovementioned enterprises, are brought to the attention of the Council for the Improvement of Legislation in the Social and Labour Sphere without further delay. It requests the Government to provide information on the outcome of the discussion and on any remedial measures taken should it be found that anti-union discrimination and interference have occurred. It further requests the Government to provide information on the employment status of Mr Aleksey Gabriel.

Furthermore, the Committee once again urges the Government to take measures to ensure that enterprise managers do not interfere in the internal affairs of trade unions and instructions are given to the Prosecutor-General, Minister of Justice and court administrators that all complaints of interference and anti-union discrimination are thoroughly investigated. Should such complaints prove true, the necessary measures should be taken to put an end to such acts and punish those responsible.

Article 4. Right to collective bargaining. The Committee recalls that it had previously requested the Government to provide its observations on the CDTU’s allegations of refusal to bargain collectively with its affiliates at the “Naftan” and “Grodno-Azot” enterprises. In this respect, the Committee notes that in its most recent communication, the CDTU alleges that the employer at “Naftan” enterprise has excluded the primary BITU trade union from the collective bargaining process and the agreement for 2011 has been signed with the primary trade union of the FTUB. The CDTU indicates that the union’s appeals to the National Labour Arbitration and the State Labour Inspectorate and other bodies brought no results. The Committee notes the Government’s indication that while the agreement was signed by the FTUB-affiliated union, which is the most representative organization, it applies to all workers, regardless of their union membership. The Government indicates, however, that the CDTU appealed to the tripartite Council and this issue was discussed during the Council’s 1 November 2011 meeting. The Council has decided to refer this question to its tripartite working group. The Committee requests the Government to provide information on the outcome of the discussion in the tripartite working group concerning the case of “Naftan” enterprise, as well as on the situation at the “Grodno-Azot” with regard to the participation of the CDTU-affiliated union in the collective bargaining.

The Committee welcomes the information provided by the Government in relation to the conclusion of a General Agreement for 2011–13, covering all employers’ and workers’ organizations in the country, signed on 30 December 2010. The Committee notes the Government’s intention to organize, together with the ILO, a tripartite seminar on the issue of social dialogue.

The Committee strongly encourages the Government to intensify its efforts to ensure full implementation of the recommendations of the Commission of Inquiry without delay, in close cooperation with all the social partners and with the assistance of the ILO. The Committee further expresses the firm hope that the Government and the social partners will continue the cooperation within the framework of the tripartite Council and that the latter will have a real impact on ensuring that the right to organize is effectively guaranteed in law and in practice.