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

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

The Committee notes the comments submitted with the 2012 Government report by the Confederation of Trade Unions of Armenia and by the Republican Union of Employers of Armenia on the application of the Convention, which mainly refer to matters already being examined by the Committee.

The Committee also notes the Government’s observations on the comments of the Republican Union of Employers of Armenia dated 1 August 2011 criticizing that the Act to amend and supplement the Labour Code had not been submitted to the Tripartite Republican Commission. The Committee notes in particular that the Government indicates that the draft was discussed at the Commission’s session of 29 September 2009, in which it was decided to grant the parties one week to submit their suggestions, and that the suggestions of the Confederation of Trade Unions of Armenia and of the Republican Union of Employers of Armenia were presented on 5 October 2009 in Notes Nos 01-05 and 50. Noting the recent comment of the Confederation of Trade Unions of Armenia reiterating that the abovementioned suggestions have not been discussed in the Tripartite Republican Commission, the Committee cannot reach any conclusion and can only generally recall the importance it attaches to the prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law.

The Committee takes due note of the Government’s reply confirming the legislative prohibition of acts of interference by section 26 of the Labour Code as amended (Article 2 of the Convention).

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 indicates that, as a result of the adoption of the Act to amend and supplement the Labour Code of 24 June 2010, section 44 of the Labour Code now provides that its Part 2 (Collective Labour Relations) applies to the state and local autonomous bodies as well as to the workers of the Central Bank of Armenia, and does not apply to the labour relations involving the workers of special services, persons holding political, discretionary and civil posts. The Committee recalls that, pursuant to Article 6, only public servants who are engaged in the administration of the State can be excluded from the guarantees enshrined in the Convention. The Committee requests the Government to provide information on the meaning of the terms “special services” and “civil posts”, and on the categories of workers covered by those terms.

Promotion of collective bargaining. In its previous comment, the Committee had noted 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)); (ii) the existence of representatives (body) elected by the staff meeting (conference) must not prevent the implementation of the trade unions’ functions (section 23(3)); and (iii) 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 had noted 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. In this regard, the Committee recalled 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 recalled that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted.

The Committee had requested the Government to confirm its understanding of the legislation in force as regards the interaction between minority unions and elected representatives. In the absence of any information provided by the Government in this regard, the Committee recalls the principles enunciated above and requests the Government to clarify whether, under the legislation in force, in cases where there is no trade union representing 50 per cent of the company’s workers, the existing minority unions are entitled to bargain collectively on behalf of their own members.

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 noted 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 recalled 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 welcomes the Government’s indication that the question of modification of the abovementioned provisions will be included in the draft Act to amend and supplement the Labour Code. The Committee therefore trusts that the Government will take the necessary measures to amend sections 59(4) and 61(2) of the Labour Code so as to guarantee the application of the abovementioned principleabovementioned principle.abovementioned principle.