Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Belarus (Ratification: 1956)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

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 discussion that took place in the Conference Committee on the Application of Standards in June 2013 concerning the application of the Convention. It also notes the 369th 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 30 August 2013 alleging numerous violations of the Convention, including denial of the right to hold pickets and demonstrations, deregistration of a primary trade union affiliated to the Radio and Electronic Workers’ Union (REWU), and pressure and threats exercised by the authorities on leaders of the Free Metal Workers’ Union (FMWU). The Committee requests the Government to provide detailed observations on the ITUC’s allegations. The Committee further notes the comments submitted by the International Organisation of Employers (IOE) in a communication dated 30 August 2013.

Article 2 of the Convention. Right to establish workers’ organizations. The Committee recalls that in its previous observations it had urged the Government to take the necessary measures to amend Presidential Decree No. 2, its rules and regulations, so as to remove the obstacles to trade union registration (legal address and 10 per cent minimum membership requirements). The Committee notes that, in its statement at the Conference Committee in June 2013, the Government referred to its proposal to amend the Decree by revoking the 10 per cent membership requirement for the establishment of a union at the enterprise level. The Committee regrets that no further information has been provided by the Government on the progress made in this respect. The Committee further deeply regrets that there have been no tangible measures taken by the Government, nor have there been any concrete proposals, to amend the legal address requirement, which appears to continue to hinder registration of trade unions and their primary organizations in practice.

In this connection, and with reference to its previous observation and the 369th Report of the Committee on Freedom of Association, the Committee expresses its concern at the situation of trade union rights at “Granit” enterprise. The Committee recalls the allegation that the management of the enterprise refused to provide a primary organization of the Belarus Independent Trade Union (BITU) with the legal address required, pursuant to Decree No. 2, for registration of trade unions. The Committee notes that, in its report, the Government indicates that the majority of members of the Council for the Improvement of Legislation in the Social and Labour Sphere (the Council), having discussed the matter at the Council’s meeting in March 2013, raised doubts about the establishment of the BITU primary trade union and considered that the actions of the enterprise management were justifiable as the BITU had failed to submit the minutes of the founding meeting. The Government submits that, while the legislation does not contain any numerical requirement for the establishment of primary trade union organizations, other requirements must to be fulfilled, including the requirement to hold a constituent meeting. According to the Government, the analysis of the situation raised sufficient doubts as to whether the meeting had really taken place and therefore whether the organization had been established. The Committee further notes the Government’s indication that, according to the legislation, the employers are not obliged to provide a union with premises and that this question is to be regulated through collective bargaining. On the other hand, the union is not obliged to have its legal address on the premises of the enterprise and is free to rent a space elsewhere. According to the Government, while the Belarusian Congress of Democratic Trade Unions CDTU alleged that it faced refusal when attempting to rent a suitable space, it provided no specific information to sustain its allegations. Finally, the Government indicates that to date the BITU has not approached the registration authorities concerning the registration or recording of its primary trade union organization.

The Committee notes what appears to be contradictory information about the establishment of the BITU primary organization, as referred to by the Government in its communications to this Committee and the Committee on Freedom of Association. The Committee recalls that the 2004 Commission of Inquiry had examined at length the difficulties with obtaining legal address faced in practice by trade unions outside of the structure of the Federation of Trade Unions of Belarus (FPB) (see paragraphs 590–598 of the Report). It deeply regrets that almost ten years later, these difficulties still appear to exist. The Committee understands that in the absence of legal address, due to the legal address requirement set forth by Decree No. 2 and the restrictions as to what can constitute a valid legal address imposed by, among other pieces of legislation, the Housing and Civil Codes, the BITU could not apply for the registration of its primary trade union. While noting the Government’s indication that in 2012, there have been no cases of refusal to register trade union organizations, the Committee notes with deep regret that, despite the numerous requests by the ILO supervisory bodies, there have been no tangible measures taken by the Government to amend the Decree. In view of the above, the Committee urges the Government, in consultations with the social partners, to amend Decree No. 2 and to address the issue of registration of trade unions in practice, including by re-examining the situation of the BITU primary trade union with a view to allowing its registration. The Committee requests the Government to indicate in its next report all progress made in this respect.

Concerning the Committee’s previous request to provide detailed observations on the CDTU’s earlier allegation that the Polotsk municipality refused to register the free trade union primary organization of “Self-employed workers at Polotsk outdoor collective farm market”, the Committee regrets that the Government’s reply is limited to indicating that the union has failed to provide a complete file of documents required for the registration. It therefore expects that the Government’s next report will contain detailed observations thereon.

Articles 3, 5 and 6. Right of workers’ organizations, including federations and confederations, to organize their activities. The Committee recalls that it had previously expressed its concern at the allegations of repeated refusals to authorize the CDTU, BITU and REWU to hold demonstrations and meetings and requested the Government to conduct independent investigations into these allegations, as well as to bring to the attention of the relevant authorities the right of workers to participate in peaceful demonstrations to defend their occupational interests. The Committee notes the Government’s indication that those allegations are too general, which makes it difficult for the Government to comment. The Committee notes with concern the ITUC’s allegation of refusal by the Minsk City Executive Committee to grant permission to hold a picket planned by the BITU for 20 July 2013. Recalling that peaceful protests are protected by the Convention and that public meetings and demonstrations should not be arbitrarily refused, the Committee urges the Government, in working together with the abovementioned organizations, to investigate all of the alleged cases of refusals to authorize the holding of demonstrations and meetings and to bring to the attention of the relevant authorities the right of workers to participate in peaceful demonstrations and meetings to defend their occupational interests.

The Committee recalls that it had previously noted with concern the CDTU’s allegation that after the chairperson of the Soligorsk BITU regional organization met with several women workers (on their way to their workplaces), she was detained by the police on 4 August 2010 and subsequently found guilty of committing administrative offence and fined. According to the CDTU, the court had decided that by having met members of the union near the entrance gate of the company, the trade union leader had violated the Act on Mass Activities. The Committee had requested the Government to provide its observations on the facts alleged by the CDTU. The Committee deeply regrets that the Government provides no information in this respect. It therefore once again reiterates its request.

In this connection, the Committee recalls that for a number of years it had been requesting the Government to amend the Act on Mass Activities, which imposes restrictions on mass activities and provides that an organization (including a trade union) can be liquidated for a single breach of its provisions (section 15), while organizers may be charged with a violation of the Administrative Code and thus subject to administrative detention. The Committee deeply regrets that once again no information has been provided by the Government on concrete measures taken in this respect. It therefore reiterates its previous request.

With regard to its previous request to amend Presidential Decree No. 24 concerning the use of foreign gratuitous aid, the Committee notes the Government’s indication that there have been no refusals to register such aid and that the organizations that have requested the registration have obtained it. While noting this information, the Committee recalls that the Commission of Inquiry observed in its report that the Decree prohibited “the use of foreign gratuitous aid for, among others, carrying out public meetings, rallies, street processions, demonstrations, pickets, strikes and the running of seminars and other forms of mass campaigning among the population. Violation of this provision can result in the imposition of heavy fines, as well as the possible termination of an organization’s activities. While the Government stated that Decree No. 24 was only aimed at rendering the previous situation transparent and created a simple and rapid procedure for the registration of foreign aid, the Commission heard from one of the employers’ organizations that, to the contrary, the process was costly and time-consuming. The Commission recalls from the principles elaborated by the ILO supervisory bodies that the right recognized in Articles 5 and 6 of the Convention implies the right to benefit from the relations that may be established with an international workers’ or employers’ organization. Legislation which prohibits the acceptance by a national trade union or employers’ organization of financial assistance from an international workers’ or employers’ organization, unless approved by the Government, and provides for the banning of any organization where there is evidence that it has received such assistance, is not in conformity with this right. Although there were no specific allegations as to the practical application of this Decree, the Commission reiterates the conclusions made by these supervisory bodies that the previous authorization required for foreign gratuitous aid and the restricted use for such aid set forth in Decree No. 24 is incompatible with the right of workers’ and employers’ organizations to organize their own activities and to benefit from assistance that might be provided by international workers’ and employers’ organizations” (see paragraphs 623 and 624 of the report of the Commission of Inquiry). The Committee therefore once again urges the Government, in consultation with the social partners, to amend Decree No. 24 so as to ensure that workers’ and employers’ organizations may effectively organize their administration and activities and benefit from assistance from international organizations of workers and employers in conformity with Articles 5 and 6 of the Convention. It requests the Government to provide information on all measures taken in this respect.

The Committee regrets that no information has been provided by the Government on the concrete measures taken to amend sections 388, 390, 392 and 399 of the Labour Code affecting the right of workers’ organizations to organize their activities in full freedom. The Committee notes that in its report the Government requests to clarify to what degree the position of the Committee in this respect reflects a balanced position of the social partners pursuant to the principles of tripartism. The Committee recalls that it has been requesting the Government to amend the above provisions since the adoption of the Labour Code in 1999. It therefore encourages the Government to revise these provisions, in consultation with the social partners, and to provide information on all measures taken or envisaged to that end.

The Committee notes with deep regret that no progress has been made by the Government towards implementing the recommendations of the Commission of Inquiry and improving the application of this Convention in law and in practice during the reporting year. Indeed, the Government has not provided any information on steps taken to amend the legislative provisions in question, as previously requested by this Committee, the Conference Committee, the Commission of Inquiry and the Committee on Freedom of Association. The Committee therefore urges the Government to intensify its efforts in ensuring that freedom of association and respect for civil liberties are fully and effectively guaranteed in law and in practice and expresses the firm hope that the Government will intensify its cooperation with all the social partners in this regard.

The Committee welcomes the acceptance by the Government of a direct contacts mission with a view to obtaining a full picture of the trade union rights in the country and assisting the Government in the rapid and effective implementation of all outstanding recommendations of the Commission of Inquiry. The Committee hopes that the mission will take place in the very near future.

[The Government is asked to supply full particulars to the Conference at its 103rd Session and to reply in detail to the present comments in 2014.]