Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

Follow-up to the recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

The Committee notes the observations of the Belarusian Congress of Democratic Trade Unions (BKDP) and of the International Trade Union Confederation (ITUC), received on 31 August 2019 and 1 September 2019, respectively.

The Committee notes the 385th and the 390th reports 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.

As a general point, the Committee notes that activities aimed at giving effect to the recommendations of the Commission of Inquiry continued in the country in collaboration with the ILO. In this respect, the Committee notes the Government’s indication that a training course on international labour standards for judges, lawyers and legal educators that took place in Minsk in June 2017 allowed the participants to increase their knowledge of the practical application of international labour standards. The Committee further notes that a tripartite conference “Tripartism and Social Dialogue in the World of Work” was held in Minsk on 27 February 2019. The Committee recalls that it had previously noted that one of the outcomes of a tripartite activity on dispute resolution held in 2016 was the common understanding of the need to continue working together towards building a strong and efficient system of dispute resolution, which could handle labour disputes involving individual, collective and trade union matters. The Committee notes with regret the BKDP’s indication that the work on developing such a mechanism has been neglected completely. The Committee requests the Government to provide its comments thereon and invites it to continue to take advantage of ILO technical assistance in this regard.

Article 2 of the Convention. Right to establish workers’ organizations. The Committee recalls that in its previous observations, it had urged the Government to consider, within the framework of the tripartite Council for the Improvement of Legislation in the Social and Labour Sphere (hereinafter, tripartite Council), the measures necessary to ensure that the matter of legal address ceases to be an obstacle to the registration of trade unions in practice. The Committee notes the Government’s indication that at present, the requirement to provide confirmation of legal address is not an obstacle to the registration of trade unions and that there were no cases of refusal to register trade unions or unions (associations) of trade unions in 2016, 2018 or the first half of 2019. The Government informs that in 2017, a registration of a union in Minsk was refused due to non-compliance with the procedure for establishing a trade union, and not due to the lack of legal address; the union did not appeal this decision in court. Furthermore, according to the Government, in the period from 2016 to the end of July 2019, there were ten cases of refusal to register trade union organizational structures: seven cases concerned organizational structures of trade unions affiliated to the Federation of Trade Unions of Belarus (FPB) and two cases concerned primary organizations of unions affiliated to the BKDP. Among the latter two, one case concerned a primary trade union of the Belarusian Independent Trade Union (BNP) of workers from a construction company (both the BKDP and the ITUC refer to this case in their observations). The Government indicates that following submission of all the documents required by law, the organization was registered pursuant to a decision of the Soligorsk District Executive Committee of 15 January 2019. Another case concerned a primary organization of the Belarusian Union of Radio and Electronics Workers (REP) and the refusal was due to a repeated failure to submit registration documents; the union did not appeal this decision in court. The Government points out that in this period, registration was granted to 3,779 trade union organizational structures. In short, the above ten cases show that decisions denying registration are rare: only one such case was due to the absence of a legal address and, according to the Government, even this decision was not appealed in court. The Government further indicates that once the identified shortcomings have been rectified, documents for state registration can be resubmitted. Thus, the Government concludes, a refusal to grant registration is not tantamount to prohibiting the establishment of a trade union. While noting this information, the Committee observes that the BKDP and the ITUC refer, in addition, to cases of refusal to register the Free Trade Union of Belarus (SPB) and REP-affiliated trade union structures in Orsha and Bobruisk. The Committee requests the Government to provide its comments thereon.

Regarding the Committee’s request to discuss the issue of registration by the tripartite Council, the Committee notes the Government’s indication that the agenda for meetings is set on the basis of proposals from the parties and organizations represented on the Council, taking into account the relevance of the issues raised, and with the agreement of the Council’s members. To that end, the information should be submitted to the Council’s secretariat (the Ministry of Labour and Social Protection) with an explanation as to why that particular issue is problematic and merits consideration by the Council. The Government indicates that in 2016–19, there have been no submissions for discussion of issues relating to the legal address requirement. The Committee requests the Government, as a member of the tripartite Council, to submit the Committee’s comments on the issue of registration for the Council’s consideration at one of its meetings. The Committee requests the Government to inform it of the outcome of the discussion.

Articles 3, 5 and 6. Right of workers’ organizations, including federations and confederations, to organize their activities. Legislation. The Committee recalls that the Commission of Inquiry had requested the Government to amend Presidential Decree No. 24 of 28 November 2003 on Receiving and Using Foreign Gratuitous Aid. The Committee further recalls that it had considered that the amendments should be directed at abolishing the sanctions imposed on trade unions (liquidation of an organization) for a single violation of the Decree and at widening the scope of activities for which foreign financial assistance can be used so as to include events organized by trade unions. The Committee notes the Government’s indication that Decree No. 24 has been superseded by Presidential Decree No. 5 of 31 August 2015 on Foreign Gratuitous Aid and the ensuing Regulations on the Procedures for the Receipt, Recording, Registration and Use of Foreign Gratuitous Aid, the Monitoring of its Receipt and Intended Use, and the Registration of Humanitarian Programmes. The Committee notes with regret that just as previously under Decree No. 24, the foreign gratuitous aid cannot be used to organize or hold assemblies, rallies, street marches, demonstrations, pickets or strikes, or to produce or distribute campaign materials, hold seminars or carry out other forms of political and mass campaigning work among the population and that a single violation of the Regulation bears the sanction of possible liquidation of the organization.

Further in this connection, the Committee recalls that the Commission of Inquiry had requested the Government to amend the Law on Mass Activities. The Committee recalls that under the Law, which establishes a procedure for mass events, the application to hold an event must be made to the local executive and administrative body. While the decision of that body can be appealed in court, the Law does not set out clear grounds on which a request may be denied. A trade union that violates the procedure for organizing and holding mass events may, in the case of serious damage or substantial harm to the rights and legal interests of other citizens and organizations, be liquidated for a single violation. In this context, “violation” includes a temporary cessation of organizational activity or the disruption of traffic, death or physical injury to one or more individuals, or damage exceeding 10,000 times a value to be established on the date of the event. The Committee had requested the Government to amend the legislation, in particular by abolishing the sanctions imposed on trade unions or trade unionists for a single violation of the Law and setting out clear grounds for the denial of requests to hold trade union mass events, bearing in mind that any such restriction should be in conformity with freedom of association principles.

The Committee notes the Government’s indication that the Law on Mass Activities was amended on 26 January 2019. The Government indicates that the revised Act sets out a number of additional measures and requirements that need to be complied with by the organizers in order to ensure the law and order and public safety during mass events. The Committee notes with deep regret that the Law on Mass Activities was not amended along the lines of its previous requests. It also notes with concern the BKDP’s allegation that the amendments to the Law were not discussed with the social partners. The Committee also notes the BKDP’s indication that among the novelties in the Law is the notification procedure for street action, which applies to mass events to be organized at “permanent places” designated as such by local authorities. Thus, according to the BKDP, the format of an event is imposed on the organizers, as rallies and pickets are possible in the squares designated as “permanent places”, but processions and demonstrations are not. The Committee requests the Government to provide its comments thereon.

The Committee notes with regret the adoption by the Council of Ministers (pursuant to the Law on Mass Activities) of the Regulations on the procedure of payment for services provided by the internal affairs authorities in respect of protection of public order, expenses related to medical care and cleaning after holding a mass event (Ordinance No. 49, which entered into force on 26 January 2019). The Committee notes that according to the Regulations, once a mass event is authorized, the organizer must conclude contracts with the relevant territory internal affairs bodies, health services facilities and cleaning facilities regarding, respectively, protection of public order, medical and cleaning services. The Regulations provide for the fees in relation to protection of public services as follows: three base units – for an event with the participation of up to ten people; 25 base units – for an event with the participation of 11 to 100 people; 150 base units – for an event with the participation of 101 to 1,000 people; 250 base units – for an event with the participation of more than 1,000 people. The Committee notes that according to the information provided by the BKDP, the current base unit is set at BYN25.5 (US$12.5). If the event is to take place in an area which is not a “permanent designated area,” the above fees are to be multiplied by a coefficient of 1.5. In addition to the above fees, the Regulations provide for the expenses of the specialized bodies (medical and cleaning services) that must be paid by the organizer of the event. According to the Regulation, these shall include: salary of employees engaged in the provision of services taking into account their category, number and time spent in the mass event; mandatory insurance contributions; the cost of supplies and materials, including medicine, medical products, detergents; indirect expenses of specialized bodies; taxes, fees, other obligatory payments to the republican and local budgets provided by law.

Reading these recent provisions alongside those forbidding the use of foreign gratuitous aid for the conduct of mass events (the Regulation adopted pursuant to Decree No. 5), the Committee considers that the capacity for carrying out mass actions would appear to be extremely limited if not inexistent in practice. The Committee therefore once again urges the Government, in consultation with the social partners, to amend the Law on Mass Activities and the Regulation adopted pursuant to Decree No. 5 in the very near future and requests the Government to provide information on all measures taken in this respect as soon as possible. The Committee recalls that the amendments should be directed at abolishing the sanctions imposed on trade unions or trade unionists for a single violation of the respective legislation; at setting out clear grounds for the denial of requests to hold trade union mass events, bearing in mind that any such restriction should be in conformity with freedom of association principles; and at widening the scope of activities for which foreign financial assistance can be used. Furthermore, considering that the right to organize public meetings and demonstrations constitutes an important aspect of trade union rights, the Committee requests the Government to take the necessary steps in order to repeal the Ordinance of the Council of Ministers No. 49, which makes the exercise of this right nearly impossible in practice. The Committee requests the Government to provide information on all measures taken to that end and invites the Government to avail itself of ILO technical assistance in this respect.

Practice. The Committee recalls that it had previously expressed its concern at the allegations of repeated refusals to authorize the BKDP, the BNP and the REP to hold demonstrations and public meetings. The Committee had urged the Government, in working together with the above-mentioned 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 had also requested the Government to reply to the BKDP allegations regarding a video posted on YouTube showing the activists of the Women’s Network of the Independent Union of Miners (NPG) protesting by the entrance to the NPG office against the raising of the retirement age. The Committee recalls that according to the BKDP, participants were summoned to the Soligorsk police station and charged with a violation of the Administrative Code. On 17 May 2016, the court determined the protests recorded on the video to be an unauthorized picketing, found the participants guilty and imposed a penalty in the form of an administrative warning. Also in May 2016, the Polotsk Court found Mr Victor Stukov and Mr Nikolai Sharakh, trade union activists of the BNP union at a fiberglass enterprise, guilty of participating in unauthorized picketing and imposed fines amounting to €250 and €300, respectively. According to the BKDP, trade unionists were protesting in the city centre against violations of labour legislation at the enterprise and against Mr Sharakh’s dismissal.

The Committee notes the Government’s detailed comments on these cases. The Government points out that the above-mentioned activists were charged under the Administrative Code not for exercising their right to participate in peaceful protests to defend their professional interests, but for violating the legislation, i.e. for having organized and held events that had not been agreed upon with the local executive and administrative bodies. The Government further points out that decisions to deny an authorization for a mass event are taken in strict compliance with the law in force and on the basis of a careful analysis of the effect on public order and safety. In 2016–19, the following were the most common reasons to deny an authorization to hold a mass event: the application did not contain the information required by the law; another mass event was being held in the same place at the same time; the event was to take place in a location not allowed for such a purpose; the documents submitted did not indicate the precise location of the event; and the event was announced in the mass media prior to receiving authorization. The Government indicates that when a permission to hold a mass event is not granted, the organizers, having rectified the shortcomings, may re-submit their application. Finally, a decision prohibiting the holding of a mass event may be appealed in court. The Government informs that the BKDP has been able to organize assemblies and demonstrations and refers in this respect to several examples where the permission to hold such events was granted. While taking note of this information, the Committee notes the most recent BKDP’s allegations that executive authorities in Minsk, Mogilev, Vitebsk, Zhlobin, Borisov, Gomel, Brest, Novopolotsk refused to grant a permission to hold mass events. The Committee requests the Government to provide its detailed comments thereon.

The Committee notes the BKDP and the ITUC allegations regarding the cases of Messrs Fedynich and Komlik, leaders of the REP union, found guilty, in 2018, of tax evasion and use of foreign funds without officially registering them with the authorities as per the legislation in force. They were sentenced to four years of suspended imprisonment, restriction of movement, a ban on holding senior positions for five years and a fine of BYN47,560 (over US$22,500). The Committee notes that the particulars of these cases are being considered by the Committee on Freedom of Association in the framework of its examination of the measures taken by the Government to implement the recommendations of the Commission of Inquiry. In this connection, the Committee further notes the BKDP allegation that the equipment seized during searches in the REP and BNP premises have not been returned until now. The Committee requests the Government to provide information regarding this allegation.

Right to strike. The Committee recalls that it had been requesting the Government for a number of years to amend the following sections of the Labour Code as regards the exercise of the right to strike: sections 388(3) and 393, so as to ensure that no legislative limitations can be imposed on the peaceful exercise of the right to strike in the interest of rights and freedoms of other persons (except for cases of acute national crisis, or for public servants exercising authority in the name of the state, or essential services in the strict sense of the term, i.e. only those, the interruption of which, would endanger the life, personal safety or health of the whole or part of the population); 388(4) so as to ensure that national workers’ organizations may receive assistance, including financial assistance, from international workers’ organizations, even when the purpose is to assist in the exercise of freely chosen industrial action; 390, by repealing the requirement of the notification of strike duration; and 392, so as to ensure that the final determination concerning the minimum service to be provided in the event of disagreement between the parties is made by an independent body and to further ensure that minimum services are not required in all undertakings but only in essential services, public services of fundamental importance, situations in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population, or to ensure the safe operation of necessary facilities. The Committee regrets that once again no information has been provided by the Government on the measures taken to amend the above-mentioned provisions affecting the right of workers’ organizations to organize their activities in full freedom. The Committee therefore encourages the Government to take measures 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 the BKDP allegations of violation of the right to strike in practice and requests the Government to provide its reply thereon.

While duly recognizing the efforts made by the Government, the Committee emphasizes that much remains to be done in order to implement in full all of the Commission of Inquiry’s recommendations. It encourages the Government to pursue its efforts in this respect and expects that the Government, with the assistance of the ILO and in consultation with the social partners, will take the necessary steps to fully implement all outstanding recommendations without further delay. Noting the BKDP alleged lack of consultations in respect of the adoption of new pieces of legislation affecting rights and interest of workers, the Committee requests the Government to take the necessary measures in order to further strengthen the role of the tripartite Council for the Improvement of Legislation in the Social and Labour Sphere, which should, as its title indicates, play a role of a platform where consultations on the legislation affecting rights and interests of the social partners can take place.

[The Government is asked to reply in full to the present comments in 2020.]