Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), Education International (EI) and the Educators and Scientists Free Trade Union of Georgia (ESFTUG), and of the Georgian Trade Union Confederation (GTUC) received respectively on 1, 17 and 29 September 2014, referring to issues raised by the Committee below and alleging serious cases of interference, including the establishment of workers’ organizations under the domination of employers in the public sector, numerous acts of anti-union discrimination both in the public and private sectors as well as obstacles to collective bargaining in the public education sector. While noting its reply to the 2013 GTUC observations, the Committee requests the Government to provide its detailed comments on the 2014 trade union observations mentioned above.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that the Labour Code did not contain explicit provisions banning dismissals by reason of union membership or participating in union activities and that, according to section 5.8 of the Code, an employer was not required to substantiate its decision for not recruiting an applicant, even in the event of an allegation of anti-union discrimination. The Committee had thus requested the Government to take the necessary measures to revise 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. The Committee notes that the Government’s information that the Labour Code was amended on 12 June 2013, with a view to fully incorporating the requirements of the Convention into domestic legislation. In this respect, the Committee notes with satisfaction that: (i) sections 2 and 40.2 of the revised Labour Code expressly prohibit anti-union discrimination both at the pre-contractual stage and through the employment relationship; (ii) sections 37 and 40.2 of the Labour Code expressly prohibit termination based on anti-union discrimination; and (iii) according to the mentioned provisions, the burden of proof shall lie with the employer if the employee refers to circumstances which establish a reasonable doubt that the employer did terminate the contract of employment on an anti-union ground. Noting the Government’s indication concerning the applicability of the new rules on burden of proof to allegations of anti-union discrimination at the recruitment stage, the Committee requests the Government to provide information on any complaints of anti-union discrimination at the time of hiring and any relevant court judgments as well as to indicate whether section 5.8 of the Labour Code has been invoked in such cases and to what extent it may have rendered it difficult to prove such discrimination.

Article 2. Interference by employers in internal trade union affairs. The Committee notes that new section 40.3 of the Labour Code stipulates that: (i) any form of interference in each other’s activities is strictly prohibited for employers and employees’ associations; and (ii) interference means any practice aimed at intervening in an association by financial or other means with the object of placing the activities of such association under the control of another organization. The Committee requests the Government to confirm that this section covers not only acts of interference between organizations but also instances where individual employers may interfere in employees’ associations and to indicate the remedies and/or sanctions provided in such cases under this new section 40.3 of the Labour Code. The Committee requests the Government to provide any administrative or judicial decision in this respect.

The Committee finally notes the GTUC observations concerning the absence of labour inspection and its strong impact on the protection against anti-union discrimination and acts of interference in practice. Welcoming the Government’s indication that the establishment of a state monitoring agency on labour conditions and labour rights issues is under way in consultation with the social partners and with the support of the ILO Project on improved compliance with labour laws in Georgia, the Committee requests the Government to provide information on the progress made in this respect and to provide detailed information on the application of the Convention in practice, including statistics on the number of confirmed cases of anti-union discrimination and acts of interference, the remedies provided and sanctions imposed.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to take the necessary measures in order to amend sections 41 and 43 of the Labour Code 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. The Committee notes with satisfaction that as part of the 2013 amendments to the Labour Code, sections 41 and 43 were revised and that: (i) collective agreements are now concluded only with employees’ associations; and (ii) contracts of employment clauses will be declared null and void if they contradict the applicable collective agreement, except when the clause improves the workers’ conditions.

The Committee also notes the Government’s indications that according to the information provided by trade unions, 42 collective agreements, which are still valid, were concluded in 2011–13 (28 in 2011, six in 2012 and eight in 2013). The Committee requests the Government to continue to inform on the actions taken to promote collective bargaining both in the public and private sectors and on the number of collective agreements signed and the number of workers covered.

In its previous comments, the Committee had requested the Government to provide detailed information on the nature and number of cases of alleged violations of trade union rights examined by the Tripartite Social Partnership Commission (TSPC), as well as on the effect given to its decisions and recommendations. The Committee notes that the Government indicates that: (i) the functioning and the composition of the TSPC were revised by the amended Labour Code and Resolution No. 258 of 7 October 2013; (ii) the new TSPC met for the first time on 1 May 2014 and its discussions included the mediation system of collective labour disputes in general as well as the existing conflicts at the Georgian Railway Ltd, the Georgian Post Ltd and in the education and mining–metallurgical sectors; (iii) with the support of the ILO Project on improved compliance with labour laws in Georgia, a selection process and training of candidates’ mediators were carried out; and (iv) the new Labour and Employment Policy Department of the Ministry of Labour operates as a moderator along with the social partners for the regulation of collective labour disputes and is actively involved in the ongoing process of negotiations within the Georgian Railway Ltd and the Georgian Post Ltd.

The Committee welcomes the initiatives taken to strengthen the labour administration and to institutionalize social dialogue and requests the Government to continue to inform about this process. While highlighting the importance of fully involving the social partners in the settlement of collective labour disputes, the Committee requests the Government to inform on the results of the mediation of ongoing labour disputes.

The Committee is raising other matters in a request addressed directly to the Government.