Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 31 July 2012, Education International (EI) and the Educators and Scientists Free Trade Union of Georgia (ESFTUG) in a communication dated 31 August 2012, and the Georgian Trade Unions Confederation (GTUC) in a communication dated 21 September 2012, referring to the issues raised by the Committee below. The Committee notes the Government’s reply to these communications. It observes, however, that the Government’s observations do not address in detail the issues raised.

The Committee further notes the Government’s latest communication dated 22 November 2012 in which it expresses its strong commitment to collaborate with the social partners and the ILO in order to execute respective changes, including amendments in labour legislation. The Committee welcomes this cooperative spirit and trusts that its comments below will be of assistance in this process.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that it had previously 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, even in the event of an allegation of anti-union discrimination, 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(1)(d) and 38(3) of the 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 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. It therefore requested the Government to take the necessary measures to revise sections 5(8), 37(1)(d) and 38(3) of the Code in consultation with the social partners, so as to ensure that it provides for an adequate protection against anti-union discrimination. It further requested 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.

The Committee notes that in its report the Government, while stressing that it pays vital attention to the prohibition of anti-union discrimination and explores the possibility to better address the issue in order to ensure a clear and better articulated prohibition of anti-union discrimination, indicates that the legislation in force provides guarantees of freedom of association and prohibits any kind of discrimination based on membership in any type of association, including trade unions. In this respect, it once again refers to the general prohibition of anti-union discrimination enshrined in the national Constitution (article 26(1)), the Law on Trade Unions (sections 2(3) and 11(6)), the Labour Code (section 2(3) and (6)), and the Criminal Code (sections 142 and 146). The Government indicates that prohibition of anti-union discrimination is applicable both at the recruitment and employment termination stages and that penal sanctions may be applied in case of violation of workers’ rights. An employer’s request to disclose membership in any association, including trade unions, during recruitment, is illegal and punishable. The Government points out that there are no reported cases when a person was not recruited based on his/her trade union membership. Furthermore, the Government indicates that it was able to retrieve ten cases in which trade union members appealed to the courts and that only one involved allegations of anti-union discrimination. In this respect, the Government indicates that most of the cases in which the GTUC claims discrimination concern dismissals of trade union leaders without prior consent of the trade union and not alleged anti-union discrimination per se.

With regard to section 37 of the Labour Code, the Government reiterates 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 pursuant to the provisions of 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. Both parties must provide facts and arguments and burden of proof lies with both of them (section 102 of the Code of Civil Procedure). Accordingly, an employer is obliged to provide facts to justify that the dismissal of a worker was not based on an illegitimate reason. The Government refers to the ruling of the Supreme Court (Case No. 343-327-2011, 1 December 2011), according to which, in the course of the termination of a labour contract, the fundamental human rights, including protection against discrimination envisaged by the Labour Code, should be ensured. Thus, in case of a dismissal of a worker, it should be meaningfully investigated whether the dismissal was based on discriminatory grounds; in this case, the burden of proof lies with the employer.

The Committee notes that the Supreme Court case referred to by the Government concerns a dismissal of a trade union leader and that according to the court’s reasoning, the Labour Code allows termination of employment of any employee, including an elected trade union officer. According to the court, election to a trade union office does not provide any additional privileges. In this respect, the Committee considers that, while the Convention requires protection against acts of anti-union discrimination in relation to all workers, the protection provided for in the Convention is particularly important in the case of trade union representatives and officers. One of the ways of ensuring this protection is to provide that trade union representatives may not be dismissed or otherwise prejudiced either during their term of office, or for a specified period following its expiry. With regard to the protection at the time of recruitment, the Committee once again 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.

The Committee notes with concern numerous allegations of anti-union dismissals submitted by the GTUC, the ITUC, the ESFTUG and the EI in their respective communications. Thus, while noting the information provided by the Government and observing that general provisions prohibiting discrimination exist in the legislation, the Committee underlines that it is essential that the system in place is an effective one. The Committee considers, for example, that options compatible with the Convention would include: 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.

In the light of the above, the Committee considers that the system currently in place in Georgia does not afford adequate protection. The Committee therefore once again requests the Government to take the necessary measures to revise sections 5(8), 37(1)(d) and 38(3) of the Labour Code in consultation with the social partners, so as to ensure that the Labour Code provides for adequate protection of trade union members and trade union leaders 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 requests the Government to provide its detailed observations on the comments submitted by workers’ organizations.

Article 2. Interference by employers in internal trade union affairs. The Committee recalls that it had previously noted various legislative provisions which provide for the protection against interference by employers in trade union affairs. The Committee notes with concern numerous allegations of employers’ interference in trade union internal affairs, in the private and public sectors, which include prohibition of collection of trade union dues, harassment and pressure exercised on trade union members to leave their respective unions. The Committee requests the Government to provide its detailed observations thereon.

Article 4. Collective bargaining. The Committee had previously noted that sections 41–43 of the Labour Code appeared 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 regrets that the Government merely reiterates 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; and trade unions are protected in law against acts of interference. The Committee must therefore once again stress that 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 is difficult to reconcile 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 the 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 recalls that it had also 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. In this respect, it notes the Government’s indication that it does not have official statistics regarding the number of collective agreements. The Government points out, however, that according to the 2010 ILO/DIALOGUE study, the collective bargaining coverage rate in the country is 25.9 per cent. It also refers to a collective agreement concluded in 2010 at a mine factory following a strike.

The Committee notes with concern numerous allegations of violations of collective bargaining rights in the country submitted by the abovementioned international and national trade union organizations. It notes, in particular that, according to the information provided by these organizations, employers in the public and private sectors refuse to bargain collectively or to respect those agreements that have been concluded. It further notes the following statistics provided by the GTUC: during 2011, 41 collective agreements were terminated and 32 agreements expired and were not renewed; not a single agreement was signed in the second half of 2011; and between June 2011 and June 2012, only five new collective agreements have been concluded. The Committee requests the Government to provide its detailed observations on the comments submitted by workers’ organizations.

The Committee recalls that in its previous comments it had noted the steps taken by the Government to institutionalize social dialogue in the country through the establishment of the Tripartite Social Partnership Commission (TSPC), which, among other matters, dealt with the allegations of violations of trade union rights submitted by trade unions. The Committee notes with concern the GTUC’s allegation that the TSPC remains to be very ineffective and that over two-and-a-half years of its existence, this body has not solved one single issue and not one of its decisions and recommendations has been acted upon. The Committee requests the Government to provide detailed information on the nature and number of cases examined by the TSPC, as well as on the effect given to its decisions and recommendations.

The Committee recalls that it had previously noted that a tripartite working group of the TSPC had been established and 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 expresses the hope that any proposed amendments will take into account its comments above. It requests the Government to provide information on all progress achieved in this respect.